1. Collection of evidence at international criminal tribunals Prof. Göran Sluiter Amsterdam Center for International Law University of Amsterdam

2. Two systems of evidence collection Adversarial: Parties to the proceedings must collect their own evidence, supporting their respective cases Inquisitorial: Evidence is collected by objective party/judge  Objective prosecutor  Examining magistrate

3. Experiments in international criminal justice Adversarial approach:  post WW II Tribunals of Nuremberg and Tokyo  ICTY, ICTR and SCSL Towards a more inquisitorial approach of collection of evidence:  Possibility for judges to call witnesses and put questions to witnesses at ICTY, ICTR and SCSL  Duty for ICC Prosecutor to look for exculpatory evidence  Co-investigating judges and judicial investigations at ECCC

4. Evaluation: preferable approach? Parameters for evaluation: fairness,efficiency, quality of fact-finding, goals and objectives of international criminal procedure Problem of conflicting parameters for evaluation, lack of priority and differences between international criminal tribunals Problems in approaches:  Adversarial (ICTY, ICTR, SCSL): no equality of arms,’sporting contest’ as an obstacle to establishing the truth, very lengthy trials  Inquisitorial element at ICTY (active role for Trial judges): risk of interference with presentation of evidence and cross- examination, risk of affecting impartiality

5. Evaluation - ctd  Inquisitorial (ICC, duty to look for exonerating evidence): how is this enforced in practice? Not yet a culture of an ‘objective prosecutor’ in international criminal proceedings  Inquisitorial ‘pure’ (ECCC): very lengthy pre-trial phase, no/limited involvement of defence, risk of repeating the pre-trial judicial investigation at trial, risk of inaccessible trials (no/limited presentation of evidence at trial)

6. Evidence collection in practice Sufficient evidence must be available (if not, proceedings should be stayed/terminated (Tadic appeals judgement, 15 July 1999) In respect of all evidence and all parties: cooperation is needed from a. states, b. non-state entities, c. individuals In adversarial approach: equality of arms, prosecutor and defence must be able to collect evidence under procedurally equal circumstances Once evidence collected by parties: question of disclosure

7. State cooperation in the collection of evidence Fairness: does the defence have sufficient access to state cooperation?  Problem 1: Defence is not an organ and there is no duty to cooperate with the Defence  Problem 2: Judges can request states to cooperate, but impose a certain threshold for Defence applications; this threshold does not exist for the Prosecutor  Problem 3: Certain investigative powers are exclusively available to the Prosecutor, which is inconsistent with the equality of arms. Article 99 (4) of the ICC Statute is the example.

8. State cooperation - ctd Efficiency: States do not comply with a request for collection of evidence One can distinguish several scenarios  Acting good faith / bad faith  Problem at the requesting court? For example, request is not clear, not properly formulated  Legitimate ground of refusal (either explicit in the Statute or implicit)  National law offers no basis for compliance  National authorities are practically unable to obtain the requested evidence  National authorities deliberately refuse or even ignore request for assistance

9. State cooperation - ctd Biggest problem: enforcement of compliance Several ICC decisions in respect of non-cooperative States  Non-party: Sudan  Party-states: Kenya and Chad Steps to be followed in a process of enforcing compliance  Legal argument/hearing including all affected parties: prosecutor, defence and non-complying State  Judicial determination of non-compliance (preferably by a special Chamber)  Faithful execution of the judgement by political body (risk of Assembly of States Parties as appellate body for non-complying State)

10. Thank you for your attention!