From ad Hoc to Hybrid—The Rules and Regulations Governing Reception of Expert Evidence at the International Criminal Court
| Author | Nicole Derham,Roger Derham |
| DOI | 10.1350/ijep.2010.14.1.339 |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| Subject Matter | Article |
From ad hoc to
hybrid—the rules and
regulations governing
reception of expert
evidence at the
International Criminal
Court
By Roger Derham* and
Consultant Gynaecologist and Forensic Examiner, Bon Secours
Hospital, Galway, Ireland
Nicole Derham†
Trainee Solicitor; formerly Intern Human Rights Unit, Department of
Foreign Affairs, Ireland
Abstract The International Criminal Court has been established as a permanent
forum to try only the gravest of crimes. Given the unique treaty-sanctioned
amalgamation of common law and civil law procedures of the Court, this article
examines the evidentiary provisions for the reception of expert opinion at
pre-trial, trial and reparation stages. It discusses some of the recent decisions
concerning expert witness testimony and considers whether this jurisprudence
has evolved sufficiently to overcome many of the perceived shortcomings of
expert witness involvement in the ad hoc tribunals. The article looks to recent
*
HDipMed (Forensic), LLM (Int Hum Rights Law), MFFLM, FRCOG; email: rd.gynae@gmail.com.
†
BCL, LLM (Criminal Justice); email: nicderham@gmail.com.
doi:10.1350/ijep.2010.14.1.339
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2010) 14 E&P 25–56
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RULES, ETC. GOVERNING RECEPTION OF EXPERT EVIDENCE AT THE ICC
developments in national civil and criminal law procedures concerning expert
testimony and proposes the adoption of a specific definition of what the ICC
actually considers an expert or expert witness to be, as well as a Code of Conduct
for such witnesses. In conclusion the article proposes a minimal-set of
procedural modifications thought essential to optimise the use of experts and
expert witnesses at the ICC.
Keywords International Criminal Court; Expert evidence; Uncertainty in rules
for reception; Need for Code of Conduct; Comparisons between international
and domestic criminal procedure
The Court shall have the authority to request the submission of all
evidence that it considers necessary for the determination of the truth.1
An expert opinion is relevant only if the facts upon which it is based are
true.2
ruth is an outcome whose conclusion can never be posited.3 Equally it
is also a chameleon, its conclusion—or camouflage—depending on
T whethertheoutcomeisofreligious,philosophical,historical,scientific
or judicial importance. Where judicial truth is concerned the reception of expert
evidence and opinion is a consequence of the establishment, over time, of a
powerful individual right to a fair trial and although a complementary individual
right to truth has not fully been established4 the International Criminal Court
(ICC) has been granted a proxy collective ‘authority’ or right to judicial truth by
the Rome Statute.5 Established as a permanent institution of world judicial
order, the ICC’s primary duty is an obligation to prosecute and try only the gravest
of crimes.6 The Articles7 as well as the adopted Rules8 and Regulations of the
1
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 of 17 July 1998 and
corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17
January 2001 and 16 January 2002. Entered into force on 1 July 2002 hereinafter ICC Rome
Statute’); Art. 69(3). In Kantian terms the ICC could be considered a judicial ‘kingdom of ends’. In
marked contrast to highly pragmatic domestic demands the aspiration of achieving justice at an
international level, as embodied in the Rome Statute, is that the aspiration is permanently
attached to formally adopted parallel aspirations of ‘peace, security and well-being of the world’,
ending ‘impunity’ and ensuring ‘lasting respect’ for international justice.
2
Prosecutor v Delalic et al., Case No. IT-96-21-A, Appeals Chamber, Diminished mental responsibility,
20 February 2001, para. 594.
3
S. Kierkegaard, Concluding Unscientific Postscript, Trans: D. Swenson and W. Lowrie (Princeton
University Press: Princeton, 1944) 169. Kierkegaard defined ‘Truth’ empirically as the ‘conformity
of thought and being’ the effect of which was ‘retroactive’.
4
Y. Naqvi, ‘The Right to Truth in International Law: Fact or Fiction’ (2006) 88(862) Int Rev Red Cross
245–73.
5
Above n. 1.
6
B. Cathala, ‘The First Five Years of the ICC’ (2008) ICC Newsletter 20 12–20.
7
ICC Rome Statute, Arts 1–128.
8
Rules of Procedure and Evidence; Official Records ICC-ASP/1/3 hereinafter ‘ICC Rules’), rr. 1–225.
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RULES, ETC. GOVERNING RECEPTION OF EXPERT EVIDENCE AT THE ICC
Court,9 the Registry,10 and most recently of the Office of the Prosecutor,11 with its
treaty-sanctioned hybrid amalgamation of inquisitorial and adversarial eviden-
tiary process,12 include differing provisions for the appointment of experts or
expert groups by the Court, the Registry, the prosecution, the defence, the victims
or the accused at investigative, pre-trial, trial, appeal, sentencing, reparation or
enforcement stages.
For the expert or expert witness truth is arrived at, or more accurately stated,
approximated to. In its purest form, based on scientific research and experience,
any opinion rendered is an objective deduction. For the trier-of-fact, on the other
hand, it is a revealed truth, a judgment opinion based on an examination of the
facts and in general is the result of a subjective reduction. The two approaches are
naturally disharmonic and in attempting to ascertain the truth in complex
criminal cases, the fact that the outcome of a case may hinge on the opinion of an
expert or expert witness makes triers-of-fact, as well as prosecuting and defence
lawyers, somewhat apprehensive concerning its reception.13
This general sense of unease, it must be stated, is not just generated by a
perception of disproportionate weight being given to expert opinion, but also by
specific procedural concerns about ‘junk science’, contests of experts, and
conflicts of duty-owed. Most importantly, however, from an expert witness’s
perspective, is that there has also been a significant failure by triers-of-fact to
comprehend fully the increasingly complex science being presented,14 a proce-
dural failure that has accelerated the erosion of the deference previously afforded
expert opinion within both common law and civil law traditions. This is most
evident when one considers the increasingly permitted attacks on what many trial
lawyers now consider to be the soft underbelly of the criminal evidentiary process,
the expert witness rather than the expert evidence presented.15 In order to redress
9
Regulations of the Court; Official Records ICC-BD/01-01-04, Regulations 1–126, adopted 26 May
2004; amended 14 June and 14 November 2007, ICC-BD/01-02-07, entered into force 18 December
2007 hereinafter ‘ICC Regulations’).
10 Regulations of the Registry ICC-BD/03-01-06-Rev.1, entered into force 6 March 2005, First revision,
25 September 2006 (hereinafter ICC Registry Regulations’).
11 Regulations of the Office of the Prosecutor ICC-BD/05-01-09, entered into force 23 April 2009.
12 K. Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’ (2003) 3 Int
Crim L Rev 1–37.
13 S. I. Gatowski et al., ‘Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a
Post-Daubert World’ (2001) 25(5) Law & Hum Behav 433–58.
14 J. A. Moreno, ‘Einstein on the Bench?: Exposing What Judges Do Not Know about Science and Using
Child Abuse Cases to Improve How Courts Evaluate Scientific Evidence’ (2003) 64 Ohio St LJ 531.
15 D. M. Godden and D. Walton, ‘Argument from Expert Opinion as Legal Evidence: Critical Questions
and Admissibility Criteria of Expert Testimony in the American Legal System’ (2006) 19(3) Ratio Juris
261–86.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
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RULES, ETC. GOVERNING RECEPTION OF EXPERT EVIDENCE AT THE ICC
these ‘negative’ developments fairly restrictive reviews of the rules, or absence of
rules, governing the reception of expert opinion have been undertaken in many
jurisdictions. 16, 17
All of the organs and actions of the ICC including, it must be interpreted, the
reception of expert evidence are charged with a ‘gravity’ requirement18 and once
this criterion has been satisfied all further procedure is informed by an
‘equality-of-arms’ provision derived from human rights law. A number of specific
questions arise, however, concerning the rules and procedures governing the
anticipated use of expert or expert witness opinion. Why has the Court begun its
work without having adequately defined what it understands an expert or an
expert witness to be? Will the Court, as it evolves, continue an economic pursuit of
truth with a sustained enforcement of a stringent gravity assessment of the
necessity and probity of experts? Will it develop a code of conduct for experts?
What conditions govern the value of the evidence given by a Chamber-appointed
expert or an expert drawn from the list of experts kept by the Registry, in
comparison to an expert employed by the defence or a victim? What conditions
govern the procedural transition from expert to expert witness? What exactly are
the immunities enjoyed by the expert witness? Are the full protective provisions of
the Victims and Witnesses Unit intended to include the expert witness? What
procedural rules govern the permitted direct examination of an expert witness by
a victim’s lawyer in a reparation hearing? What are the exact criteria or standards
employed to determine...
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