Proving International Crimes, Yvonne McDermott, Oxford University Press 2024, 207 pages, £100.00
Fact-finding in the international criminal tribunals will always be probabilistic in nature, because the evidence is invariably incomplete, rarely conclusive, often ambiguous, frequently dissonant, and always with varying degrees of credibility and reliability.… Probabilistic reasoning often involves updating one’s prior beliefs in light of each new piece of information as it is presented. Under what is commonly called ‘relative plausibility theory’ or ‘inference to the best explanation,’ a fact-finder evaluates the different likely explanations of the evidence, and considers which of these explanations is most likely. (pp. 128-129)
If international criminal judgements cannot rigorously demonstrate the evidence and inference that led to particular conclusions … this could jeopardize their legitimacy and claim to authority to try and punish alleged perpetrators of international crimes. (p. 67)
A trial – reduced to its essence in so far as what a prosecutor or counsel can influence – is about having evidence admitted or excluded: getting good/favorable stuff in and keeping bad/unfavorable stuff out. The outcome rests on the evidence: what it is and how it was admitted, screened, assessed, connected, weighed, and applied to the law.
In national jurisdictions, how evidence is treated is ordinarily settled law and practice. All involved (judges, prosecutors, defence counsel, victims’ representatives) sing from the same music sheet. This cultivates uniform, consistent, and predictable procedure. Save for occasional deviations or lapses, criminal case resolutions at the appellate level are largely deemed just and accepted. If only judges at international criminal tribunals were as uniform and consistent and mindful and experienced and receptive to a set approach in admitting and assessing evidence.
With judges of different systems and disparate judicial experience (some don the judicial robe having no relevant experience), and with no detailed rules of evidence such as those found in common law traditions, and with no set approach on how evidence should be admitted, let alone assessed, how international criminal trials are conducted vary perceptibly, both procedurally and substantively. As such, it should come as no surprise that outcomes of trials at any of the international criminal tribunals are not always embraced as fair and just. Looking at some trial and appeal judgments and the attendant separate and dissenting opinion, one gets the sense that among the judges, to paraphrase from the classic film Cool Hand Luke: What we’ve got here is failure to communicate.
Were it up to me, I would mandate that before judges are sworn in (and before they can invoke judicial independence for doing things their way) they complete a training on substantive and procedural international criminal law. I would specifically include the completion of a course on evidence that would compare the common law and civil law approaches, as well as the evidentiary principles that have evolved from practice at the international criminal tribunals. It is essential for the judges to appreciate the foundational principles behind the two major traditions and how they inform the judge’s understanding of the evidence game.
At the risk of being accused of being too parochial or Americentric, I submit that a fine model is that of the Federal Judicial Center in the US, which provides a two-phase orientation program to newly confirmed federal judges that covers such topics as judicial ethics, case management, pretrial and trial issues, evidence, judicial security, matters germane to their specific jurisdictions and roles, substantive law, and the effective use of technology. New court of appeals judges attend an orientation program that covers chambers and case management, judicial ethics, opinion writing and editing, wellness, and managing caseloads using information technology. The Center also offers federal judges national and circuit-based workshops and special focus programs to provide updates and continuing education on these and other topics.
Judges reading this are probably aghast at the cheek of a defence counsel deigning to criticize them for their incongruent approaches in appreciating and handling evidence and to advocate mandatory judicial training. Understandable. But one need only look at the various ICC judgements; they are not that many despite the ICC’s 20 plus years of existence. The motley approaches to admitting, screening, assessing, and applying evidence is dependent on the serendipitous make-up of the trial bench, often leading to a hodgepodge of reasonings, justifications, and opinions. And confusion.
Mandatory instructions delineating a consistent and coherent method to admitting and assessing evidence based on acceptable criteria would go a long way in promoting a uniform approach to trying cases and drafting well-reasoned judgments. Fortunately, the ICC judges have gradually come to realize that inconsistency in approaches causes confusion, generates conflicting and confusing jurisprudence, and diminishes trust in the outcomes of trials and appeals. To reconcile the disparate approaches and promote consistency and uniformity while still allowing a fair amount of discretion, the ICC judges have drafted the Chambers Practice Manual. The eighth edition was adopted after the 2024 judicial retreat. While useful, it falls short of what is needed. Highly experienced judges manage just fine. But what of the inexperienced and B-list judges? Query, whether detailed rules of evidence should be drafted and incorporated into Chambers Practice Manual.
Judges from civil law/judge-controlled trial procedures are unlikely to agree to being hemmed by regimented rules. Their approach to evidence evaluation and reasoning is free-flowing as they search for truth to their intimate convictions. Judges from common law/party-driven trial procedures rely on rules of evidence not only to guide them, but to also ensure that jurors – as fact-finders – are shielded from prejudicial, irrelevant, and unreliable evidence. With the evidence screened as it is attempted to be admitted, the jury or judge is instructed by a set of precepts on how to consider the evidence and how, exercising common sense and experiences, they should go about determining the facts to which they must apply to the law in reaching a verdict. The legal culture clash on issues of evidence will always be a fact beyond change. Adopting regimented and binding rules of evidence is as unrealistic as it will be unacceptable for most judges.
Naïvely, when I first started practicing before the International Criminal Tribunal for the former Yugoslavia (ICTY), that seemed like an attractive solution. I had nearly twenty years of experience as a criminal defence lawyer in the US and had worked extensively in the civil law systems. The hybridity of the ICTY while liberating, was also frustrating. With no concrete rules of evidence, anything and everything seemed admissible, any applicable rules to speak of were being made or altered as the proceedings were ongoing, and from courtroom to courtroom the trial proceedings were about as uniform as big-time wrestling matches. Over the years my thinking has evolved.
The evidentiary principles needed for the mega-trials at the various international criminal tribunals have yet to ripen into a fixed set of guiding precepts that would accommodate judges of all legal traditions and evidentiary practices and predilections. Things are moving in the right direction. With further practice, contemplation, understanding and consensus, evidentiary principles can be fine-tuned to guide the factfinding process in a methodically uniform fashion that fosters certainty and acceptance of trial outcomes.
But why wait. Clarity on issues of evidence and proof at the international criminal tribunals and on solutions going forward can be found in Proving International Crimes by Swansea University Professor of Law Yvonne McDermott.
Prof. McDermott sets out to untangle the intricate knot of international criminal evidence – from its admission at the trial stage to the appellate review of claimed factual errors. This holistic approach is essential to the practitioner who generally tends to primarily be interested in practical applications of rules/principles on evidence, while also having readily available supporting expositions for further edification.
When considering issues of evidence as they relate to proving or disproving the charges, given the adversarial/hybrid nature of the international criminal tribunals, a multidimensional approach is needed. The collection process is obviously essential to ensure authenticity and reliability, critical ingredients for any piece of evidence that is admitted and deemed relevant. Then there is the issue of when and how it will be admitted after it being submitted, and more importantly, how it will be assessed – individually and collectively. Then there is the issue of how the assessment of the evidence is reflected in the judgment. And finally, to what extent the factual findings will be reviewed and disturbed by Appeals Chambers.
To help us make sense of how Trial and Appeals Chambers have approached these matters – which, in no small measure, will dictate the ultimate validity and acceptability of the outcome of a case at the conclusion of the appellate process – Proving International Crimes “conceptualizes international criminal evidence as stretching beyond the rules of evidence presentation in trials, to incorporate practices on the evaluation of evidence, the interpretation of the burden of proof, and the principles such as appellate deference to Trial Chambers’ factual findings.”
In light of the ICC’s permanent nature and centrality, Prof. McDermott meticulously examines the legal framework, judgements, decisions, motions, and transcripts of the ICC, contextualizing the ICC’s law and practice through the legal frameworks, judgments, decisions, and procedures of other international and hybrid criminal tribunals. Appreciating that issues of evidence and proof at the international criminal tribunals do not neatly fit into domestic systems (as other keen observers and practitioners have come to realize), she wisely advises that they be viewed as “a uniquely pluralistic (and at times experimental) melting pot of rules and procedures curated from domestic practice, with some elements that are unique to international criminal law.”
In eight logically organized, bite-size chapters of elegant prose and well-sourced analysis and elucidations (as she fitting expressed), Prof. McDermott covers the whole evidentiary gambit:
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- Introduction
- Principles of International Criminal Evidence
- The Admission and Exclusion of Evidence
- The Burden of Proof and Standard of Proof
- The Evaluation of Different Forms of Evidence
- Weighing the Evidence as a Whole
- Proof on Appeal
- Conclusion
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Distilling international criminal evidence to its nub as reflected from her research and analysis, she notes four defining features:
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- flexibility and discretion afforded to Chambers
- the free assessment of evidence
- the centrality of fairness
- the search for the truth
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Chapters 2 to 7 admirably validate these four features and persuasively supports Prof. McDermott’s overarching findings, cogently articulated in Chapter 8:
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- international evidence has yet to evolve into a coherent body of law, and
- the principles of rectitude of decisions and the highest standard of fairness should drive the development of a coherent framework for proving international crimes.
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Along the way Prof. McDermott also tackles all sorts of sundry issues. Particularly appreciated is her dispensing of arguments from victim-oriented/pro-conviction (my characterization) academics – e.g. Larry May and S. Fyfe, M. De Guzman (currently an IRMCT judge) and N.A. Combs – calling for the lowering of the standard of proof: the beyond reasonable doubt standard is too high for prosecutors to meet given the complexity of the cases and difficulties in effectively investigating.
Prof. McDermott’s counter to Nancy Combs’ argument that because reasonable doubt in international cases is more likely attributable to flawed investigations than to a lack of sufficient evidence, cuts he to the quick:
In other words, Combs assumes that evidence pointing to guilt of the accused probably exist, it is just that the prosecution investigators do not always manage to source it. This assumption seems incompatible with the presumption of innocence and the burden of proof which makes it very clear that it is for the prosecution to prove the guilt of the accused.
In the Conclusion, Prof. McDermott offers practical, concrete, even sage advice. Having shown the need for a “coherent framework for proving international crimes, moving beyond the inherent flexibility of international criminal procedure to ensure consistency and coherence,” she recommends that it is necessary to consider “how different elements of a procedural model fit together as a whole system of international criminal evidence.” She rightly notes the need to consider how to strengthen the evaluation of evidence, as well as to consider how to ensure the quality of evidence. She ends with recommendations for future research.
Proving International Crimes is a superb source to guide the experienced, the less so, and the novice. All current and future judges (and staff) at all the international criminal tribunals, as well as all others involved, whether on the prosecution, defence, or victim side, should read this gem. It is an excellent go to reference on issues of evidence and proof before any international criminal tribunal.
I highly recommend Proving International Crimes.
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