Falsa Demonstratio Non Nocet: The Record of the Proceedings at the ICC is a Case File–Now More Than Ever

[Dr. Alexander Heinze, LL.M. (TCD) is Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-University of Göttingen.]

There are two ways an International(ised) Criminal Tribunal (ICT) can regulate the transmission of information in the proceedings: by combining a case file approach with a restrictive disclosure regime or by introducing extensive disclosure rules with no case file or one that merely records what has been disclosed inter partes anyway. Echoing the famous maxim falsa demonstration non nocet (mistaken expressions do not change the intended object, Kolb, p. 98), the record of the proceedings at the ICC is a case file, irrespective of its name. The argument has been made in the early years of the Court’s existence but not received considerable attention – mainly because it was still a purely normative argument. Recent developments, however, confirm the suspicion that the ICC also practically uses its record of the proceedings as a case file – or at least what lawyers in the Romano/Germanic legal tradition would call ‘a case file’.

The Case File as a Framing Problem

The drafters of both Statute and Rules used the term ‘record of the proceedings’ to denominate the information that is captured and preserved during criminal proceedings. They appear to have intentionally steered away from terms like ‘case file’ and ‘dossier’ that are still associated with the ‘inquisitorial system’, triggering fears of an inquisitor, a presumption of guilt and trials entirely based on written material. This framing problem appears regularly upon the drafting of procedural rules at ICTs. As one of the younger examples serves the Kosovo Specialist Chambers (KSC): Throughout the Rules of Procedure and Evidence, the Judges as their drafters opted for the term ‘the case file’ (see eg Rules 72(1)/(3); 93(1); 94(3); 95(2)(e)/(f)), while Rule 24 refers to ‘case file’ but is headlined ‘Record of Proceedings’. Lawyers trained in a legal system from the Common Law tradition are also largely unfamiliar with the concept of a case file or dossier, whilst to most continental lawyers the term means a comprehensive compilation of information that ‘sets the framework for proceedings’ (Stahn, p. 274; Fairlie, p. 299, Combs, p. 332).

Ex Parte Evidentiary Material in the Record of the Proceedings

However, recent developments in both disclosure and evidence law at the ICC make it hard to deny that the Court promotes a case file system, albeit combined with a disclosure system that is tailored accordingly.

In general terms, a case file distinguishes itself from a record of proceedings through two main components: a knowledge component and a weight component.

The knowledge component allows the Judge at every stage of the proceedings to be fully informed about the entire background of the case (I am not referring to a situation record, Regulation 20(1) Regulations of the Registry). The record of the proceedings is defined, rather vaguely, as ‘a full and accurate record of all proceedings’ (Regulation 21 of the Regulations of the Registry, Rule 121(10) ICC RPE) and is created and maintained by the Registry. Once charges are confirmed, the case record of all proceedings before the Pre-Trial Chamber is transmitted, via Presidency, to the Trial Chamber, as provided by Rule 130 ICC RPE. According to Rule 131 ICC RPE the case record ‘may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91’.

To be clear, all this does not turn the case record into a case file, since the rules and regulations mentioned do not indicate how comprehensive the information in the record actually is. In fact, a record of the proceedings that merely includes what has been disclosed inter partes anyway would fail to qualify as a case file due to a weak knowledge component. Understood this way, the record would mirror the information level of the parties, as suggested by the Chambers Practice Manual:

Following the confirmation of charges and the assignment of the case to a Trial Chamber, the record is transmitted to the Trial Chamber pursuant to Rule 130 of the Rules. This includes all evidence which has become part of the record by way of its communication to the Pre-Trial Chamber following inter partes disclosure (cf. also Rule 121(10) of the Rules) (Chambers Practice Manual, para 69).

Accordingly, the Yekatom Defence in the Yekatom and Ngaïssona case recently requested Pre-Trial Chamber II to ‘not include any ex parte evidentiary material in the record of the proceedings when it transmits that record to the Presidency’ (para 1). Pre-Trial Chamber II remarked that Rule 129 ICC RPE ‘univocally points to the transmission of the record in its entirety and rules out that any discretion may be vested in the Chamber for the purposes of reducing, amending or otherwise intervening on the content of the record’ (para 38, emphasis added). The Pre-Trial Chamber, however, transferred the Defence’s request to the Presidency along with the entire pre-trial record. The Presidency’s decision constituting Trial Chamber V ordered the Registry to transmit to the Chamber the ‘full record of the proceedings in the case’. By the time Judge Schmitt as the Single Judge of TC V came to deal with the request, the Registry had already transmitted the record in its entirety to the Chamber (ie including ex parte material), so the Single Judge considered the request moot (p 5). The inclusion of the ex parte material in the record of proceedings extends its knowledge component considerably and resembles a case file stricto sensu.

The Current Submission Approach as an Element of a Case File System

Yet, whatever material is placed in the record, as long as there is an additional decision about its admission (and thus its probative value and relevance), the record lacks the what I call ‘weight component’ of a case file. Evidence in a case file stricto sensu has a certain probative value and relevance. It is perceived credible evidence, regardless of how it was collected. Thus, it comes to no surprise that the Judges as drafters of the Chambers Practice Manual generally also permit the transmission of an entire record (including ex parte material), combine it, however, with a reference to what can be perceived as a weak weight component: ‘Considering that the evidence would then be individually considered for formal admission during trial, its inclusion in the record of proceedings before professional judges is not problematic’ (para 70).

This seems to turn a blind eye on the way proceedings are being conducted at the ICC, though. Some Chambers, such as in Ongwen (paras 24 ff) rejected the Chambers’ previous practice of deciding on admissibility issues at the moment of submission (‘admission approach’) and promoted an alternative approach that deferred the admissibility decision ‘until the end of the proceedings’ (‘submission approach’) (Bemba et al., para 9). The submission approach was more recently adopted by Trial Chamber X in the Al Hassan case (paras 29 ff), and given that two judges from the Ongwen Chamber also sit in the Yekatom and Ngaissona case, is likely to be adopted in that case as well. It has therefore seemingly become the norm, at least for the time being.

This approach combined with the transmission of the entire record to the Trial Chamber means after all, that the record of the proceedings largely contains material that is treated as evidence by the mere means of submission (vis-à-vis admission). This fulfills the weight component of a case file.

The Prosecutor’s Obligation to Investigate both Incriminating and Exculpatory Evidence

Last but not least, the reason the evidence in the case file contains a strong assumption of weight and credibility is the (at least perceived) impartiality of the Prosecution. As an organ of justice, the Prosecution in legal systems relying on a case file is obliged to investigate both incriminating and exculpatory evidence equally. Since the same applies to the Prosecution at the ICC (Article 54(1)(a) ICC Statute), even this structural precondition for the weight component is met.

In sum, the ICC promotes a case file approach. An acknowledgement thereof could be a step towards using this approach to its full potential. That is: streamlining the disclosure process (as I have suggested elsewhere) and increasing the efficiency of the proceedings.

Acknowledgment: I wish to express my gratitude to Beti Hohler for her valuable comments.