An Introduction To The International Criminal Court - Institute for ...

trial and appeal 151
there is no general rule excluding hearsay or indirect evidence, 40 although
it seems likely that in ruling on the admissibility of such evidence the Court
will be guided by ‘hearsay exceptions generally recognized by some national
legal systems, as well as the truthfulness, voluntariness and trustworthiness
of the evidence, as appropriate’. 41 As Helen Brady has explained, ‘[d]ebates
in the Ad Hoc Committee and the Preparatory Committee revealed a deep
chasm between the civil law and the common law traditions on the scope and
nature of the ICC’s rules of evidence. However, a compromise was finally
attained [that] is a delicate combination of civil and common-law concepts
of fair trial and due process.’ 42
To be admissible, evidence must be relevant and necessary. 43 This general
rule is similar to a provision in the Rules of Procedure and Evidence adopted
by the International Criminal Tribunal for the Former Yugoslavia. 44 Interpreting
the provision, the Tribunal has considered whether or not to read
into the text a requirement of reliability. National practice on this point
varies considerably. The Trial Chamber described reliability as ‘the invisible
golden thread which runs through all the components of admissibility’,
but stopped short of adding it as a requirement to the extent that it was not
specifically set out in the provision. 45 Thus, points out Helen Brady, although
Article 69 does not actually refer to reliability as a condition of admissibility
of evidence, it would seem that reliability is an implicit component of relevance
and probative value. ‘Any assessment of relevance and probative value
must involve some consideration of the reliability of the evidence – it must
be prima facie credible. Evidence which does not have sufficient indicia of
reliability cannot be said to be either relevant or probative to the issues to
be decided.’ 46
The defence has the right to examine witnesses on the same basis
as the Prosecutor. 47 This does not explicitly provide for a full right to
40 See Prosecutor v. Tadic (Case No. IT-94-1-T), Opinion and Judgment, 7 May 1997, (1997) 36
ILM 908, 112 ILR 1, para. 555.
41 Prosecutor v. Tadic (Case No. IT-94-1-T), Decision on Defence Motion on Hearsay, 5 August
1996, paras. 7–19.
42 Helen Brady, ‘The System of Evidence in the Statute of the International Criminal Court’, in Flavia
Lattanzi and William A. Schabas, eds., Essays on the Rome Statute of the ICC, Rome: Editrice il
Sirente, 2000, pp. 279–302 at p. 286.
43 Rome Statute, Art. 69(3).
44 ‘Rules of Procedure and Evidence’, UN Doc. IT/32, Rule 89(C).
45 Prosecutor v. Delalic et al. (Case No. IT-98-21-T), Decision on the Admissibility of Exhibit 155,
19 January 1998, para. 32.
46 Brady, ‘The System of Evidence’, p. 290. 47 Rome Statute, Art. 67(1)(e).