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THE EVIDENCE SUBMITTED BY THE PROSECUTOR DOES NOT FULFIL THE

RELATIVELY HIGH EVIDENTIARY THRESHOLD.


The critical evaluation of the sources of information and evidence is fundamental for successful
investigations.In the case of Prosecutor v. Lubanga1, The Trial Chamber noted that "Article 64(9) of
the Statute gives the Trial Chamber a seemingly unqualified power to rule on the admissibility or
relevance of evidence". Pursuant to rule 63(2) the chamber has wide discretion to decide on the
admissibility, relevance and probative value of evidence.2

According to article 69 (4) of the Statute, the Court may rule on the relevance or admissibility of any
evidence, taking into account, the probative value of the evidence and any prejudice that such
evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance
with the Rules of Procedure and Evidence.(26th citation)

A. That the evidence relied upon by the prosecutor is not relevant.

Beside the general principles on which the reliability has to be determined, it has to be borne in
mind, that the Court is always free to evaluate evidence on case to case basis, depending on the
special circumstances of each issue under prosecution.

It must be taken into consideration, however, that the evidence collected from open sources raises
several questions, especially regarding its reliability. Open Source Evidence require preservation or
collection in a manner that safeguards the intergrity and reliability of the evidence from tampering,
corruption and tainting.(15th)

In the case of Bemba Gombo Trial, the Court stated that it is not appropriate for the Prosecution to
invite the Chamber to delegate its judicial function by simply accepting the facts as asserted by NGOs
or other agencies as to the existence of particular events or crimes.3

There is a certain general rule set by article 69 (7), which points out evidences, which cannot be
considered reliable due to the way it was obtained. According to the article, evidence obtained by
means of a violation of the Rome Statute or internationally recognized human rights shall not be
admissible if the violation casts a substantial doubt on the reliability of the evidences.

Two subjective elements must be satisfied for any Open Source Evidence to be reliable-

a) It is most importantly necessary to conclude whether the evidence indicates its sources in
sufficient detail.
b) Its impartiality and independence have to be evaluated.

Regarding videos, films, photographs and audio recordings, the Trial Chamber in Katanga and
Ngudjolo stated that before video or audio material can be admitted, the Chamber will and require
evidence of originality and integrity. After the source of the evidence is revealed, it is necessary to
check its impartiality and independence. (54th citation)As established in the well known Media case,

1
Prosecutor v. Lubanga, ICC T. Ch. I

2
(Piragoff, 2001, p. 351
3
https://www.icc-cpi.int/CourtRecords/CR2012_04116.PDF
there are numerous different examples, where media has been used to spread violence against
certain groups.( 12th citation)

Hence, in the present case, the evidences submitted by the prosecutor shows that it follows an
uninvestigated and untested NGO reports that are not reliable when a lower burden of proof
applies, they would certainly not meet the more rigorous standard required to admit them into the
proceedings at this stage.

B. That the evidence relied upon by the prosecutor is not credible.

Credibility as a broader concept describes an extent to which a piece of evidence, either tangible or
testimonial, can be believed. It involves additional attributes such as authenticity and accuracy for
tangible evidences and accuracy and objectivity for intangible evidences.(25thth citation)

In Mbarushimana, the prosecution based a large part of its reasoning on the evidence collected from
open sources, such as reports issued by the UN and Human Rights Watch. The Court however noted
that ’ given the paucity of the information provided, the inconsistencies between the data and the
lack of corroborating evidence, there are no sufficient grounds to believe that the alleged crimes
occurred’(69th citation)

Further, it must be brought to the knowledge of the chamber that while members of international
organizations were supposed to be impartial, this impartiality is impossible to verify.(36th citation of
the case) In the Katanga case, the Chamber rejected the admission of a HRW repost, on the basis
that, inter alia, the HRW report was based on unchallenged accounts which had not been tested
against other differing accounts, and that aspects of his observations may have been influenced by
media reports.(37th citation of the case)

Simply because a report carries the letterhead of an international organization does not necessarily
impute it with the reliability required for admission in judicial proceedings. (37th citation of the case)

This is reflective of the practice at the ICTY, summarised well in the Kupreškić case, where it was held
that “newspapers and other kinds of media are very often a highly unreliable source of information is
common knowledge. Their reports, unsubstantiated by other material, cannot by themselves be
sufficient evidence for a court of law.”(42th citation of the case)

However, the court has deliberately not provided a fixed standard for the reliability of evidence as
the Chambers have to have an ability to assess the evidence ‘freely’.(21st citation) They are
authorized by the Statute to request any evidence that is necessary to determine the truth, subject
always to such decisions on relevance and admissibility as are necessary , bearing in mind the
dictates of fairness.(22nd citation)

Hence, the evidences provided by the OTP does not fulfil the basis of credibility to be used against
the Accused.