Scientific Evidence Before International Criminal Tribunals Research Paper

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Over the past decades, a number of international tribunals and courts have been created to help bring international human rights and humanitarian law violators to justice, thus complementing the role of domestic courts. Substantive international criminal law comprises categories of crimes such as war crimes, crimes against humanity, genocide, the crime of aggression, torture, and terrorism (Zahar and Sluiter 2008). For an accused to be found guilty of any of these crimes, the alleged perpetrator must be found criminally liable either through having materially committed the crime or through their engagement in other forms of relevant criminal behavior.

International criminal prosecutions are often exceedingly complex, as evidenced by the overambitious prosecution approach taken in the case of former Serbian President Slobodan Milosˇevic´ who was charged with over 7,500 crimes committed during three wars spanning 8 years. Expert witness testimonies can be paramount in providing specialist knowledge and contextual information. In international criminal trials, as in domestic English proceedings (??x-ref Roberts), expert witnesses “are normally allowed to testify on issues about which the judges themselves, based on their personal knowledge and experience, cannot be expected to reach an opinion alone” (Schabas 2006: 480). As the extensive experience of the International Criminal Tribunal for the Former Yugoslavia (ICTY) demonstrates, scientific expertise, especially relating to mass grave evidence, has been used successfully to prosecute the categories of crimes falling under its jurisdiction, and it is fair to assume that for future international criminal proceedings, the use of expert witnesses will continue to be imperative.

There are two aspects in particular that distinguish the presentation of expert evidence before international criminal tribunals from domestic proceedings. Firstly, investigations crucially rely on state cooperation, since international criminal institutions have no enforcement agency of their own (Del Ponte 2006). A delay in investigations can mean that much of the evidence, especially physical evidence, has vanished or deteriorated in condition (McGrath 2002). Witness testimony can be lost through death, intimidation, murder, or flight from an ongoing war zone, and access to war-torn countries can be both dangerous and difficult if international and domestic support is not forthcoming. Secondly, and more relevant to the discussion here, the mixed procedural model containing civil law and common law traditions produces a unique blend with few provisions relating to evidence presentation, creating a novel – and, to some, controversial (Murphy 2008) – environment for presenting and evaluating expert evidence. The following discussion provides an overview of the rules governing expert evidence presentation at both the ICTY and the International Criminal Court, before turning to consider how scientific expertise has assisted the ICTY in its fact-finding.

Expert Evidence Provisions At The ICTY And The ICC

Informed by the development of evidentiary rules, proceedings, and jurisprudence from previous international criminal tribunals, the ICC adopts a flexible approach to the admissibility of evidence. Article 69 of the Rome Statute states that “[t]he Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth” (Rome Statute, Art 69.3). The court adopts the affirmative, as opposed to exclusionary, method of evidence admission, taking into account in particular the probative value of the evidence and whether it is prejudicial to fair trial requirements (Rome Statute, Art 69.4).

Likewise, the ICTY’s procedural law does “not contain a detailed set of technical rules” (Prosecutor v Delalic´ 1998: [15]). Rule 89 of the ICTY’s Rules of Procedure and Evidence (RPE) states that evidence is admissible if it is relevant, of probative value, not to the detriment of a fair trial and not otherwise excluded as being obtained through methods that would be detrimental to its reliability or might damage the integrity of the proceedings (ICTY RPE, Rule 95). While the Trial Chambers may thus be inclined to admit scientific evidence, it does not follow that expert evidence will be afforded much, if any, weight in the court’s deliberations. In fact, at the ICTY it has been decided that initial admissibility rulings may be reversed at later stages in the proceedings, as and when further information relating to the validity or reliability of evidence becomes available (Prosecutor v Oric´ 2004).

Expert Witness Status

To the dismay of some (Derham and Derham 2010), neither the ICC nor the ICTY has specifically defined “expert witness.” The ICTY Trial Chamber in Popovic´ described an expert witness as someone who possesses the relevant specific knowledge, experience, or skills to help the Trial Chamber come to a better understanding and conclusion on a technical issue (Popovic´ 2007a). The qualifications of an expert, summarized in the expert’s curriculum vitae submitted to the court, authorize the expert – unlike an ordinary witness of fact – to state opinions, inferences, and conclusions on matters within the realm of her expertise.

At the ICC, pursuant to Regulation 44(1), the registry holds a list of experts whose qualifications have been verified and “have undertaken to uphold the interests of justice” (Prosecutor v Dyilo 2007a: [24]). Where possible, the parties are expected to rely on this list for expert instructions. To facilitate efficient trial management, joint instructions (including by victim representatives) of expert witnesses are preferred.

While qualifications are regarded as formal prerequisites for a witness to qualify as an expert, objectivity and independence are not. Rather, “the questions of objectivity, impartiality and independence become relevant to assess the weight to be accorded to that opinion evidence” (Prosecutor v Popovic´ 2007a: [26]). Affiliation with a party, which has been commonplace in relation to ICTY investigations, does not in itself constitute grounds for disqualification. Indeed, scientific experts were routinely employed by the ICTY’s Office of the Prosecutor, and without this arrangement, little scientific expertise or original physical evidence would have been available to the ICTY. The joint instruction procedure at the ICC should serve to ameliorate perceptions of witness bias, as the opposing parties will be bound to rely on the same expert. Neither the ICTY nor the ICC have Codes of Practice for expert witnesses, but one would expect any scientific expert to be independent and to act in good faith.

Pretrial Chamber And Expert Reports

Standard practice at the ICTY is to tender and admit expert reports through Rule 94 bis on the testimony of expert witnesses, which provides a timetable for disclosure and other preliminaries (Prosecutor v Blagojevic´ 2003: [20]). At this stage, the opposing party is required to indicate whether it intends to accept the expert witness statement, desires to cross-examine the expert witness, disputes her qualifications, or challenges the relevance of the witness statement. Expert evidence can be denied admissibility on three grounds. It must be excluded firstly, if it has been “obtained by methods which cast substantial doubt on its reliability” (ICTY RPE, Rule 95); secondly, if it jeopardizes the fairness of the trial (ICTY RPE, Rule 89(D)); and thirdly, evidence may be excluded pursuant to Rule 89(C) because it lacks probative value. Of these three grounds for exclusion, Rule 95 has the greatest relevance for the work of scientific experts, as it directly addresses the expert’s methods of data collection and whether, in light of the way the scientific inquiry was conducted, its results are reliable.

Provided that no objection is made by the other side, a scientific report can be admitted into evidence without hearing testimony from the expert, so long as the Trial Chamber is satisfied as to the evidence’s relevance and probative value (Prosecutor v Blagojevic´ 2003). In Popovic´, the ICTY elaborated on the application of the general requirements of relevance and probative value to expert reports, in terms of

(1) whether there is transparency in methods and sources used by the expert witness, including the established or assumed facts on which the expert witness relied; (2) whether the report is reliable: and (3) whether the contents of the report falls [sic] within the accepted expertise of the witness. (Prosecutor v Popovic´ 2007a: [30])

Qualification as an expert does not automatically guarantee the admissibility of the expert’s report. The burden lies on the party tendering the evidence to convince the tribunal that it satisfies Rule 89(C).

At the ICC too, the Trial Chamber has an important role to play regarding expert witnesses. A chamber not only can instruct an expert proprio motu (ICC Regulations of the Court, Reg. 44.4.), but the chamber can also determine the subject of an expert report, number of experts in the case, the way experts are instructed, and how they are to present evidence and within what time limits (Reg. 44.5). In Prosecutor v Jean-Pierre Bemba Gombo, the ICC Pretrial Chamber issued detailed instructions for the disclosure of all evidence, to ensure that the defendant receives the evidence to be disclosed by the prosecutor (ICC RPE, Rules 76 and 77) and has adequate time and facilities to prepare a defense. Only evidence that is of true relevance to the case should be disclosed. In addition, the prosecutor must supply “sufficiently detailed legal analysis relating the alleged facts with the constituent elements corresponding to each crime charged” (Prosecutor v Gombo 2008: [66]). This general requirement naturally applies to scientific evidence. Pages and paragraphs of expert reports or testimonies as well as photographs, physical evidence, and maps must be analyzed in the same way, contributing to a summary table of evidence. The Trial Chamber ultimately rules on the admissibility and relevance of evidence, including scientific evidence.

Admissibility Of Summary Reports And Transcript Testimony

The ICTY Rules of Procedure and Evidence contain provisions to facilitate expeditious presentation of complex scientific evidence. Rule 92 bis RPE authorized, for example, the presentation of summary reports by investigators in relation to mass grave excavations and examinations. These summary reports are compilations, derived from multiple sources, containing background evidence of the forensic examinations, contextualizing and reducing the complexity of the findings (e.g., Manning 2000). While summary reports can save precious trial time, they may be challenged as hearsay evidence, which is generally admissible in international criminal proceedings but may be accorded little probative value (Prosecutor v Milosˇevic´ 2002: [2](i)–(ii)). That said, investigator Manning’s report on physical evidence recovered from Srebrenica execution points and mass graves used in Krstic´ was subsequently also found to be “highly relevant to the case and admissible under Rule 89” in Prosecutor v Blagojevic´ (2003: [30]).

Similarly, Rule 92 bis (D) authorizes the admission of trial transcripts of evidence previously given by a witness, including expert witnesses, provided the evidence does not relate to the acts and conduct of the accused. In Blagojevic´ statements and transcript testimony of numerous experts relating to mass grave, investigations were admitted in this way. The Trial Chamber was satisfied that the transcript testimonies submitted under Rule 92 bis (D), along with the expert reports received pursuant to Rule 94 bis, were relevant, probative, and together provided “a complete picture of the expert evidence” (Prosecutor v Blagojevic´ 2003: [35]).

At the ICC, Article 69.2 of the Rome Statute and Rule 68 RPE govern the use of recorded testimony, including transcripts or other documented evidence as long as the measure is not “prejudicial to or inconsistent with the rights of the accused” (Rome Statute, Art 69.2). Where the witness is not present before the Trial Chamber, both the prosecutor and the defense must have had an earlier opportunity to examine the witness. Where the witness has consented for the materials to be used and is present before the chamber, the prosecutor, the defense, and the chamber must have the opportunity to examine the witness during the proceedings if they so wish.

Expert Witness Proofing

At the ICTY, prior to giving evidence in court, experts may review their testimony with the party calling them. Lawyers and expert witnesses may discuss the relevance of the scientific evidence to eliminate any misunderstandings. Such “proofing” may assure the expert witness as to their role in court, help recollect important elements of the evidence, and assist the lawyer in using the evidence effectively. While “rehearsing, practicing, or coaching” is not permitted, it was held that “reviewing a witness’ evidence prior to testimony is a permissible practice under the law of the Tribunal and, moreover, does not per se prejudice the rights of the Accused” (Proecutor v Milutinovic´ 2006: [22]).

In contrast, the ICC’s Victims and Witnesses Unit (VWU) is considered the most appropriate organ of the court to help witnesses become familiar with the experience of giving evidence. The VWU is tasked, firstly, with reminding the witness to tell the truth; secondly, to provide the witness with a copy of their original statement as a memory prompt; and thirdly, to obtain copies of any other statements made by the witness and to ensure that witnesses do not discuss their evidence with the parties. In fact, the Trial Chamber in Dyilo emphasized that “the ICC Statute and Rules do not expressly provide for the possibility of parties preparing witnesses for testimony, and further finds no provision in the texts to justify the practice” (Prosecutor v Dyilo 2007b: [36]). This was in marked contrast to the ICTY’s more relaxed approach to witness proofing.

However, in a January 2013 decision on witness preparation, Trial Chamber V ruled differently, suggesting that the silence of the Statute does not automatically imply that witness preparation is forbidden. The judges found that witness preparation is likely to “enhance the efficiency, fairness and expeditiousness of the present trial” (Prosecutor v Ruto and Sang 2013: [35]).

Testing Scientific Evidence

Fairness demands that the opposing party in an adversarial proceeding must be given the opportunity to test the evidence presented to the fact finder. This is enshrined in Art 67.1(e) of the ICC’s Rome Statute giving the accused the right “to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.” Within the general framework of victim representation at the ICC, legal representatives for victims may also question an expert witness subject to Trial Chambers’ decisions on what questions may be put to the witness.

In general, testing the reliability and credibility of scientific evidence may involve some or all of the following related issues: (a) the expert’s qualifications and status as an expert, (b) the scientific methods adopted, (c) norms of practice, (d) acceptance within the scientific community and validation of methods through publications and peer review, (e) whether and how the science is produced for litigation, and (f) the novelty of the scientific evidence presented (Edmond 2000). Evaluations of expert evidence in international criminal proceedings tend to focus on professional competency, methodologies, and the credibility of the findings in context (Schabas 2006: 480). Rule 140.2(b) of the ICC’s RPE specifies that both the prosecution and the defense have the right to question an expert witness about the reliability of the testimony provided, the credibility of the witness, and “other relevant matters.” The following pattern is commonly observed when expert evidence is given in court. After the solemn declaration, examination in chief begins with a discussion of the expert’s education and qualifications, employment record, and relevant experience, before substantial matters relating to the scientific report are queried to demonstrate the credibility of the witness and the reliability of her evidence. This is followed by cross-examination by the opposing party and, if necessary, reexamination by the party who initially called the expert. In light of the technical nature of the evidence, the accused can request the presence of her own expert during such testimony to assist with cross-examination (Prosecutor v Karadzˇic´ 2011a). Judges at the ICTY may ask questions at any stage, while ICC judges may ask questions only before or after the witness is examined by a party. The defense has the right to be the last to examine the witness (ICC RPE, Rule 140.2(c) and (d)). Challenges to the credibility of experts have been frequent before the ICTY. Experts, such as Dr Haglund in Prosecutor v Popovic´ (2007b), have been attacked on a personal level rather than being called upon to defend the substance of their evidence (Klinkner 2009). However, if the ICC’s procedural mechanism for joint instruction of expert witnesses becomes well established, one would expect there to be little strategic incentive in trying to discredit an expert whose appointment has been agreed to by all the parties.

In terms of weighing the evidence, Sluiter and Zahar observe that “[c]ross-examination, giving evidence under oath, and the direct perception of the witness’s demeanour are key factors in attaching weight to live testimony” (2008: 393). Fact finders will consider whether an expert witness appears honest, independent, and impartial, and must try to establish whether the scientific examinations were conducted according to appropriate scientific standards. Qualification as a bona fide “scientific expert” does not necessarily guarantee the quality of the work conducted in any particular case.

False Testimony And Misconduct

Like all witnesses, expert witnesses are under the obligation to tell the truth. False testimony under oath may result in an investigation, preparation of an indictment for willfully giving false testimony, and, ultimately, prosecution under Rule 91 of the ICTY’s RPE or Article 70 of the Rome Statute. To convict an expert witness of false testimony or an offense against the administration of justice “requires the necessary mens rea and not a mere wrongful statement” (Prosecutor v Akayesu (1998: [140])). At both institutions, conviction may entail imprisonment or fines. Misconduct can also be charged under Article 71 of the Rome Statute, potentially resulting in interdiction by the court or a fine. Needless to add, any of these sanctions would incidentally exact a huge reputational cost for the expert’s professional standing.

Weighing Expert Evidence: Scientific Evidence From Mass Graves Before The ICTY

Experience from the ICTY demonstrates that scientific evidence, especially in relation to mass grave investigations, has been mostly uncontroversial and generally accepted. First and foremost, scientific evidence recovered from mass graves provides useful corroboration for eyewitness testimony. In Srebrenica, for example, evidence derived from execution points and graves matched accounts of the events by those lucky enough to escape. In the case of Drazˇen Erdemovic´, one of the first defendants at the ICTY, who pleaded guilty to murder as a crime against humanity, it was the accused himself who led the investigations to execution and burial sites which were not previously known to the Office of the Prosecutor (Prosecutor v Erdemovic´ 1996: [135]). Excavations that took place at the Branjevo Military Farm revealed that there were 132 male victims in the grave, 130 of whom had died from gunshot wounds, and 83 ligatures were found in the grave. Furthermore, analysis showed that the Branjevo Military Farm mass grave had been disturbed. Individuals had been removed and placed in secondary graves (Manning 2000), indicating belated attempts at concealment.

Corroboration of evidence can assist with witness selection, especially as witnesses’ memories may have faded or been affected by posttraumatic stress disorder and the passage of time. It is conceivable that some witnesses will suffer from memory loss or alteration by adding to their own painful memories details they heard from fellow sufferers, which poses challenges for the investigation. Furthermore, studies on eyewitness testimony have found that “recall of details from a violent incident was significantly worse than recall of a nonviolent incident” (Clifford and Scott 1978: 356). Contrary to the common sense assumption that most people would never forget the face of an individual who had physically confronted and threatened them, large numbers of participants in one empirical study were unable to identify the person responsible for their ordeal. This research provides “robust evidence that eyewitness memory of persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error” (Morgan et al. 2004: 274).

Scientific evidence in general, and forensic science in particular, helps to clarify the context surrounding the crimes and contributes towards proving what crimes were committed and how they were perpetrated.

War Crimes

Grave breaches of the Geneva Conventions (ICTY Statute, Art. 2) fall within the subject matter jurisdiction of the ICTY, while Article 3 provides the tribunal with the power to prosecute “violations of the laws or customs of war,” including cruel treatment, torture, and murder. Scientific evidence can assist in confirming these charges. Findings presented in Prosecutor v Mrksˇic´ (2007) from forensic examinations of the bodies retrieved from the Ovcˇara mass grave in Croatia showed that 198 were male and two were female, with an age range from 16 to 72 years. The cause of death in 188 cases was attributable to single or multiple gunshot wounds. Seven individuals were believed to have died from trauma, while the cause of death is still unknown for the remaining five victims. Postmortem examinations revealed that 86 individuals had suffered from injuries prior to their death on 20/21 November 1991. In 1997, it was possible to identify 192 of the victims buried at Ovcˇara. With the help of forensic science, the ICTY prosecutor had little difficulty in proving the crimes that had occurred at Vukovar. The tribunal was also satisfied that the victims who were taken from the Vukovar hospital on the morning of 20 November 1991 were at that time not taking part in hostilities and therefore could not be considered legitimate military targets.

Genocide

To constitute the crime of genocide (ICTY Statute, Art. 4), the accused must have deliberately intended to destroy a protected group in whole or part (Cassese 2008). Where direct evidence of genocidal intent is absent, the requisite intent may be inferred from the factual circumstances of the crime. Perhaps the most interesting case to date where a defendant was indicted for genocide partly on the basis of scientific evidence is Krstic´. Radislav Krstic´ stood accused for his actions as Deputy Commander of the Bosnian Serb Army during the Srebrenica massacre between 10 and 19 July 1995. During the trial the prosecution called six forensic experts and two ICTY investigators to give evidence in relation to the mass grave investigations. The Trial Chamber found that the forensic evidence corroborated “important aspects of the testimony of survivors from the execution sites” (Prosecutor v Krstic´ 2001: [71]) and was sufficiently credible and compelling to confirm the actus reus of genocide.

The judges concluded that “following the take-over of Srebrenica, thousands of Bosnian Muslims were summarily executed and consigned to mass graves” (Prosecutor v Krstic´ 2001: [73]). The investigations suggested that most of the deceased had not been killed in combat, leading the judges to infer that some 7,000 missing persons had been executed and buried in mass graves. The Trial Chamber reasoned that the disappearance of generations of men showed an intent to physically destroy Bosnian Muslims as an ethnic group. Further indication of the intent to destroy the group, as such, was provided by a “well-established pattern” (Prosecutor v Krstic´ 2001: [68]) of executions. Bodies were not only concealed in mass graves, but were at a later time excavated in an attempt to hide the crimes. Expert examinations of seven secondary graves found commingled and mutilated body parts rendering identification efforts, repatriation, and appropriate burials extremely difficult, causing further distress to the survivors. The fact that all located and examined gravesites associated with the Srebrenica massacre were within the Drina Corps area of responsibility contributed to the Trial Chamber’s overall belief that Krstic´ shared the intention to commit genocide (Prosecutor v Krstic´ 2001). The Trial Chamber was satisfied that Krstic´ had participated in the joint criminal enterprise, sharing the genocidal intent to kill Bosnian Muslims, and duly convicted him of genocide. On appeal, however, this verdict was overturned as the Appeals Chamber felt that the necessary intent to commit genocide was not proven beyond reasonable doubt.

In this case, scientific evidence helped to determine that (a) a specific group was targeted; (b) the killings and burials were systematic; (c) many civilians were amongst the dead; (d) demonstrable attempts had been made to conceal the crimes; and (e) a high level of cooperation was required to undertake such executions and burials.

The Krstic´ judgments and the forensic evidence presented during that trial have since been relevant to other Srebrenica cases, especially Blagojevic´, Popovic´ et al., and Milosˇevic´. In December 2011, three of the forensic experts that appeared in Krstic´ gave evidence before the Karadzˇic´ proceedings with more experts scheduled to testify in early 2012 (Prosecutor v Karadzˇic´ 2011b).

Crimes Against Humanity

Numerous defendants have been charged with crimes against humanity (ICTY Statute, Art 5), mostly in relation to attempted “ethnic cleansing” of particular regions. In the Popovic´ trial, where five of the defendants stood accused of extermination as a crime against humanity, the defense was keen to clarify whether those found in mass graves had been killed legitimately in combat or whether they were identifiable as civilians whose murder would constitute a crime against humanity. An expert witness, for example, was asked whether some victims from mass graves could have died as a result of combat as opposed to execution and whether military clothing was found on the bodies (Prosecutor v Popovic´ 2007c). According to the expert, the evidence suggested that the dead had not been killed in combat as (a) they were not wearing military clothing; (b) the deceased were of all ages, some with physical disabilities; (c) blindfolds and ligatures were found in some graves; (d) many victims had been killed from behind by a single shot to the head; and (e) there was little indication of previous injuries consistent with combatant status. While it could not be fully excluded that some had been killed in combat, the majority of dead could not be accounted for in that way (also see Prosecutor v Popovic´ 2007d). The Trial Chamber accepted these findings and was “satisfied with the reliability of the conclusions in relation to the cause of death reached in the Prosecution expert reports” (Prosecutor v Popovic´ 2010: [619]).

In Prosecutor v Milutinovic´ (2007, 2009), the accused were allegedly responsible for deportation, forcible transfer, murder (as a crime against humanity and a violation of the laws or customs of war), and persecution of Kosovo Albanians. Volume two of the judgment reviews the evidence relating to the alleged crimes, relying on much of the forensic evidence gathered from investigations conducted in Kosovo during 1999. In light of these findings, the Trial Chamber concluded that over 700 bodies originally buried throughout Kosovo during the NATO bombing campaign were secretly exhumed and transported to Serbia in an attempt to conceal them from citizens of the former Yugoslavia and from the international community (Prosecutor v Milutinovic´ 2009). These clandestine operations led the Trial Chamber to believe “that the great majority of the corpses moved were victims of crime, as opposed to combatants or people who perished during legitimate combat activities” (Prosecutor v Milutinovic´ 2009: [1357]). Forensic science evidence thus underpinned the Trial Chamber’s conclusion that some of the deceased (who included women and children) were victims of crimes against humanity.

The Future Of Scientific Evidence In International Criminal Proceedings

Critics say that the amalgam of civil law and common law approaches to the rules and procedures of evidence creates an “uncertain, obscure, and unworkable body of law that does not expedite proceedings, but offers numerous possibilities for parties to submit motions for the exclusion of evidence” (Zahar and Sluiter 2008: 394).

Others contend that judicial liberality results in the admission of dubious evidence which prolongs proceedings and complicates the tasks of adjudication (Murphy 2008). A flexible approach to the reception of scientific evidence does, however, mean that judges are not required to assess scientific validity when ruling on issues of admissibility.

This uncluttered approach to determining the admissibility of expert evidence at the ICC and the ICTY in no way detracts from the critical importance such evidence may play in international criminal proceedings. In such complex cases, the probative value of scientific evidence is highly contextual. Questions of scientific methodology, of reliability, and of experts’ credibility, objectivity, and impartiality are addressed on a case-by-case basis through the process of testimony in court and tested through cross-examination. It is then the judges’ role to weigh the evidence presented and to arbitrate between reliable and unreliable, as well as scientifically valid and invalid, evidence. The slender body of procedural rules governing expert witness testimony reflects an implicit faith that effective communication between scientific expertise and the law is possible and that traditional legal procedures will facilitate accurate fact-finding in international criminal proceedings.

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