Law of Evidence at the International Criminal Court: Trying to Blend Accusatorial and Inquisitorial Models

The purpose of this article is to examine some features of the International Criminal Court (hereinafter “ICC”) procedural system, in particular of the law of evidence, making use of theoretical models. The article first deals with the disclosure phase. Second, it focuses on the admission of evidence. To conduct the analysis, two widely known theoretical models are employed: the accusatorial v. the inquisitorial model and the Damaška partition between the reactive v. proactive State. Despite its accusatorial structure, ICC provisions provide many important exceptions to the typical features of the accusatorial theoretical model. In particular, to uphold the values inherent in the international criminal justice system, the accusatorial theoretical model provides various exceptions to the prohibition against admitting unchallenged testimonial statements at trial. Additionally, in the disclosure phase, notwithstanding a parties-led general structure, procedural sanctions seem oriented towards leading the trial to a (possibly correct) conclusion on the merits, rather than merely punishing the misconduct of a culpable party. The above exceptions make the system, considered as a whole, partially ineffective. The picture emerging is that the accusatorial structure of the processes in international criminal procedures was adopted by the drafters without effectively implementing all its specific technical consequences. The frequent exceptions to the technical solutions implied by this theoretical model put the fairness of the system in constant potential tension, which is reminiscent of not-completely positive historical precedent, for example, the 1808 Napoléon counter-reform and the Italian struggle for an accusatorial system. In few words, the price of the inconsistencies outlined seem, in most cases, to be paid by the defense, who is systematically disadvantaged. Some changes in the interpretation and application of the ICC sources concerning the law of evidence would be advisable in order to rectify certain inconsistencies. Among them is a proposal for greater observation of the orality principle. To make this sustainable, it would be advisable to develop and improve the hermeneutic solution (originally conceived by the Ad Hoc Tribunals’ jurisprudence), which is based on the partition between acts and conduct of the defendant, and other contextual aspects of the indictment.