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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

 
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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

Published on November 6, 2019        Author: 

My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex cases, making them especially poorly suited for precisely the types of cases the ICC is mandated to deal with. 

In my view, the more common and appropriate approach, seen in national and international practice, is even-handed, holistic, experiential and practical.  The experiential approach draws on human experience.  It employs sound methods of reasoning, such as triangulation, extrapolation, interpolation, and inference to best explanation, and thus it is can work judiciously with patterns and inferences.  It is also practical: it bears in mind feasibility and procedural economy.

For brevity, I will call the alternative, emerging approach the “Cartesian” approach. I introduced its features in part 1 of this series, such as its hyperscepticality, atomism, and fixation with certainty and speculative doubts.  In this post I will give some additional examples of problematic evidentiary approaches as seen in the Gbagbo trial decision.  As the judgments are over 1300 pages, I am only able to outline some of the concerns and some examples in the most general and cursory.  My hope is to trigger an invigorated discussion of international criminal evidence law.

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 1)

Published on November 5, 2019        Author: 

The aim of this post is to start a conversation about unusual evidentiary standards emerging in some judgments at the ICC.  Although the underlying impetus is commendable, these standards pose legally unprecedented and epistemologically unsound demands.  Remarkably, these novel evidentiary approaches, which depart significantly from national and international practice, have not yet triggered much conversation.  As recent cases (such as Gbagbo) have ended in acquittals, the Court-watching community has largely simply echoed the judicial criticisms of the evidence, and hence blamed inadequate investigations.  While investigative improvements are likely part of the solution, any serious effort to repair the ICC has to consider these evidentiary standards.  These standards will significantly increase the costs and delays of ICC proceedings.  In cases of any complexity, the standards can only result in failed cases.  An invigorated sub-discipline – international criminal evidence law – is urgently needed.

In this three-part series of posts, I will focus on the Gbagbo acquittal judgment.  Douglas Guilfoyle’s thoughtful ‘tale of two cases’ advances a hypothesis that the different outcome between the Gbagbo acquittal and Ntaganda conviction is because the latter focused on an easier, smaller case.  That may be true, but I want to place alongside that another hypothesis, that the difference between the two outcomes may in part be the very different approaches by the judges.

I open with a word of sympathy for judges.  At an earlier stage of international criminal law, Tribunal judges were often criticized by academics (including me) for adopting approaches that were too pro-conviction and that overlooked rights of the accused.  Hence it is entirely understandable that judges and legal officers may have lurched in the other direction, with an eagerness to demonstrate their unparalleled care for the accused. 

The problem is when the zeal for impeccable standards swings too far, and produces a method that is so rigid, formalistic, and hypersceptical that it loses sight of substance and feasibility. Read the rest of this entry…

 
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The International Court of Justice Releases New Rules of Court

Published on November 4, 2019        Author: 

On 21 October 2019 the International Court of Justice released a series of amendments to its Rules of Court. This is the first substantive change to the Rules since 2005 and marks the fifth time the Rules have been amended since the creation of the Court (discounting the PCIJ years, on which more will be said in a moment).

The 2019 amendments are of interest because they come at a time when practical and academic interest in the Court’s procedure is at an all-time high. I say this not only because it is the focus of my own PhD research. Questions of International Law hosted a conference on procedure in May of this year; the International Law Association Committee on the Procedure of International Courts and Tribunals is in its final year and will be reporting in 2020; and the Max Planck Institute released last month a new encyclopedia dedicated to matters of procedure.

This post will set out a brief history of the Court’s Rules, speculate on the driving forces behind the 2019 amendments, and consider the implications of the new Article 79 on preliminary matters. Read the rest of this entry…

 
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Announcements: German Practice in International Law; Research Position in Climate Change Law and Policy Programme; Human Rights Essay Award Competition; CfP The Cyprus Review; ESIL Interest Group on Peace and Security

Published on November 3, 2019        Author: 

 

1. German Practice in International Law. German Practice in International Law (GPIL) publishes case studies on German State practice in the field of public international law. Each case study presents the German position on a particular question of public international law and puts that position in its wider factual and political context. Where applicable, it also records the reactions of other States and provides a legal assessment of the German position. Case studies are based on decisions by German courts, diplomatic notes, official government statements, answers to parliamentary questions, government reports, or statements before international organizations. All documents or extracts thereof not otherwise available in English are translated into English. GPIL covers the full spectrum of public international law ranging from air and space law to the use of force. The material is arranged in 35 broad subject categories. The material is presented without hyperlinks or references as many of the original documents will be in German. A fully referenced version of all entries will be published annually in book form. If you are interested in State practice, please check out GPIL here and subscribe to the newsletter.

2. CIL Research Position in Climate Change Law and Policy Programme. CIL invites applications for a Research Associate to join our Climate Change Law and Policy Programme. For more details, please see here

3. 2020 Human Rights Essay Award Competition. The Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law at the American University Washington College of Law, seeks to stimulate the production of scholarly work in international human rights law. The topic of the 2020 competition is Rule of Law and Human Rights: Strengthening Democratic Institutions. Participants have the flexibility to choose any subject related to this topic, however, the scope of the submission must directly relate to this year’s topic or it will be disqualified. International human rights law can be understood to include international humanitarian law and international criminal law. We will award two winners — one for a submission in English and one for a submission in Spanish — with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2020 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from 25 May – 12 June 2019. The deadline to enter your submission is 1 February 2020. Only participants with a law degree are eligible to enter. If you would like additional information or have any questions, contact hracademy {at} wcl.american(.)edu or iamoot {at} wcl.american(.)edu.

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