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.