The ICC Prosecutor Responds to Demands for Higher Evidentiary Standards
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
On June 25, 2014, the Office of the ICC Prosecutor formally established a Scientific Advisory Board to assist the Office in its investigatory and prosecutorial work. The Board will consist of sixteen forensic experts whose task will be to inform the Office of scientific and technological developments helpful to the Prosecutor’s capability to collect and analyze scientific evidence.
The establishment of the Board represents an effort by the Prosecutor’s Office to upgrade the quality of evidence it presents to ICC Pre-Trial and Trial Chambers. In recent years, scholarly commentators have criticized international courts and tribunals, including criminal courts and tribunals, for failing to require and utilize fact findings based on scientific examination.
In its October 11, 2013 Strategic Plan, the Prosecutor’s Office noted that ICC judges were requiring “higher evidentiary standards” and “more and different kinds of evidence” from the Office. In response to this demand, the Plan stated that the Office’s Investigative Division will, among other things,
enhan[ce] its capabilities to collect other forms of evidence … in particular scientific evidence [and will] validat[e] its investigative standards with a panel of international experts.
In a June 27, 2014 press release, the Prosecutor’s Office stated that
[t]he work of the Board will be crucial to the Office’s efforts, as reflected in its new Strategic Plan, to strengthen its investigative capabilities and enhance the quality of its deliverables when it comes to scientific evidence collection and analysis.
In the effort to carry out its mandate under the Rome Statute, the Prosecutor’s Office has to work with limited resources in very difficult environments. It is to be hoped that the establishment of the Scientific Advisory Board will assist the Office in the challenges it faces.
Commentators criticizing fact applications by international courts, including criminal courts and tribunals:
- Nancy A. Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).
- Makane Moïse Mbenguea, International Courts and Tribunals as Fact-Finders: The Case of Scientific Fact-Finding in International Adjudication, 34 Loy. L.A. Int’l & Comp. L. Rev. 53 (Summer 2011).
- José E. Alvarez, Are International Judges Afraid of Science?: A Comment on Mbengue, 34 Loy. L.A. Int’l & Comp. L. Rev. 81 (Summer 2011).