By: Lilian Srour, Junior Research Associate, PILPG-NL
The role of fact-finding missions, commissions of inquiry, and other investigative mechanisms in criminal proceedings is becoming increasingly relevant. For example, the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD) and the International, Impartial and Independent Mechanism for Syria (IIIM) have explicit mandates to collect information and evidence for the purposes of potential accountability efforts. Namely, criminal proceedings at the national, regional, and international levels. Even though these investigative mechanisms are not prosecution offices or courts, their mandates have extended in scope. This has resulted in an observable trend whereby these mechanisms are increasingly being called upon to determine whether crimes have taken place, visible through explicit mandates allowing for the examination of individual suspects.
Given that UNITAD and the IIIM continue to fulfil their respective mandates, this short piece reflects on the ability of states, like Germany, to use evidence provided by investigative mechanisms in criminal proceedings, in comparison with the International Criminal Court (ICC). This piece considers Germany as it is the site of a recent landmark decision to convict a former IS member, Taha Al J., of genocide against the Yazidi religious minority. Constrastingly, the ICC will be discussed, because the reliance on third-party findings, for instance, from investigative mechanisms, has often come under scrutiny at the ICC. Focus will lie with witness testimonies because they represent both, the strongest and the weakest link in criminal proceedings. Witness testimonies are simultaneously significant due to their utility in criminal proceedings and delicate due to the ability to tamper with witnesses, often coupled with their vulnerability.
National successes
The evidentiary standards in Germany provide that, to open an investigation, sufficient factual indications for a crime are enough and do not require a specific type of evidence. Furthermore, the competent investigating authority may consider all admissible evidence and designate its weight at its own discretion. At the investigation stage, the prosecution may consider all forms of evidence so long as these are in line with the legal requirements and limitations. At trial, the Court may rely on evidence provided by law, which are witnesses, experts, written materials, and visual inspections. Here, judges are free to assess the probative value of evidence. Generally, judges balance the importance of the case and the evidence against the gravity of the charge to determine the admissibility of evidence.
In light of Germany’s long-standing support of UNITAD, its successful conviction of Taha Al J., and the fact that it is the site of several universal jurisdiction (UJ) trials, cooperation with these investigative mechanisms is highly significant for Germany. Among other difficulties that accompany national prosecutions on the basis of UJ, the finding and accessing of relevant and credible evidence is a challenge. In this regard, this landmark conviction has widely been regarded as a a positive development of international law in general, signaling that impunity for these international crimes, particularly genocide and crimes against humanity, will not stand.
Germany’s permissive evidentiary standards and its willingness to prosecute international crimes stand to make the cooperation with and reliance on evidence, including witness testimonies, from investigative mechanisms a feasible practice.
International difficulties
At the international level, one can find the ICC’s rules on admissibility of evidence under the Rules of Procedure and Evidence. Recently, there have been calls for the Court to clarify its approach to admissibility of evidence. Seeing that investigative mechanisms are increasingly being created to respond to international crimes and violations of humanitarian and human rights law, arguably, the provision of reliable evidence, particularly witness testimonies, stands to complement international criminal proceedings.
Thus far, witness testimonies have represented a prevalent type of evidence in many cases of grave international crimes. However, due to the undefined approach of the ICC in the admission of evidence, and practices aimed at interfering with witness testimonies, over time, the use of witness testimonies has encountered several challenges affecting due process, among others. Furthermore, jurisprudence reveals that reliance on the findings of investigative mechanisms, including witness testimony, has been highly scrutinized, visible in Lubanga, Gbagbo, and more recently in the Bangladesh/Myanmar investigation.
The difficulties associated with witness testimonies in general, coupled with criticisms relating to the reliance on evidence from such investigative mechanisms, stand to make the future use of such evidence by the ICC a difficult practice. Nevertheless, over the years the limitations in relation to evidence collected by investigative mechanisms have become more widely addressed, for instance, in terms of methodology followed in evidence collection. Considering that these new investigative mechanisms have the mandate to collect evidence, specifically, for the purpose of criminal proceedings, arguably, they stand to play a beneficial role. That is through the provision of reliable evidence, such as witness testimonies, that is admissible under the Rome Statute.
The way forward
Investigative mechanisms, like the IIIM and UNITAD, continue to collect evidence to this day with the hopes of using this to pursue criminal accountability. These mechanisms represent a welcome innovation due to their ability to complement national and international proceedings by providing useful evidence and knowledge on relevant facts and circumstances about the crimes committed, for instance, in Syria. This applies to all investigative mechanisms mandated to collect evidence on international crimes. They represent an opportunity to effectively harmonize evidentiary standards and allocate resources to ensure that the evidence collected is usable in court and to avoid a duplication of efforts in the future. This is even more relevant considering that the ICC has been encouraged to devise a more comprehensive approach to the admissibility of evidence.
In relation to witness testimonies, investigative mechanisms stand to play a significant role due to the ability to decrease the time between the commission of crimes and the beginning of investigations and proceedings. This contributes to the accuracy and credibility of evidence collected. Having seen successes at the national level in UJ cases, these investigative mechanisms stand to play a significant role. At the international level, a comprehensive approach to the admissibility of evidence could guide investigative mechanisms in their collection of evidence, allowing for an effective use of resources.