Admissibility Of Open Source Information In ICC With Reference To The Bemba Case
The author of this blog is Jitesh Kadian, Research Scholar, JNU NCR-Haryana.
Introduction
RELIABILITY OF NGO
REPORTS WITH REFERENCE TO THE PROSECUTOR V HEAN PIERRE BEMBA GOMBO CASE
CONCLUSION
The admissibility of the open-source information in the
International Criminal Court is a debatable topic. After the judgment of the
Bemba Case the scenario of the admissibility and reliability of the open-source the information has changed a lot. The research paper focuses on the admissibility
of the open-source information in the International Criminal Court with
reference to the Bemba case. The topic of the research paper is the Admissibility and The credibility of Open Source Information in the International Criminal Court.
Open Source Information is information that is available publicly. It can be
accessed without taking any legal measures like seeking a warrant or employing
other legal methods. Open Source information includes the information which is
shared, created, or collected by journalists and media houses, political and
military organisations, state organisations, commercial organisations,
non-governmental organisations, international organisations, private
individuals or groups of individuals with political, military or commercial
organisations. The open-source information which is available on the internet
is known as online open-source evidence. NGO reports, online news articles,
social media data, images, leaked confidential data, documents, geospatial
imagery, public administrative records, library holdings, sound recording, etc.
are all online open- source information.[1]
The ICC has prosecuted Jean-Pierre Bemba Gombo for rape, murder, and pillaging in his capacity as a military commander. The prosecution side
submitted the evidence of a wire transfer of $1,335.16 by the sister of Bemba
to a witness for which the witness gave the false testimony. The prosecution
further presented before the court the photographs which were obtained from a
Facebook page. These photos showed the two allegedly corrupt (allegedly)
witnesses together, and became important linking evidence. The Facebook
photos were objected to by the defense. The question arose whether the photos
had probative value. The defense pleaded that it was impossible to know when
the photos were taken, who posted them, where they were taken and who took them
or even if the people present in the Facebook photos were those people which
the prosecution claimed. The defense also questioned the method by which the
photos were extracted from Facebook by the prosecution. The questions were
raised by the defense because the photos were the screenshots of the Facebook
post as the prosecution did not have direct access to these photos through
Facebook’s server. So, the prosecution did not have the IP address or metadata
which would have helped it in the authentication.[2]
The defense further opposed the admissibility of a media article
and NGO reports. The judges Sylvia Steiner and Joyce Aluoch accepted the
reports of Amnesty International, the British Broadcasting Corporation(BBC),
the Federation Internationale des Droits de L’homme(FIDH) and the United States
and these reports were admitted into evidence. Although the third judge Kuniko
Ozaki disagreed with the majority opinion. The judges admitted the report of
the UN Security Council. The report was based on the events which took place
between December 31, 2002, and January 20, 2003, in the town of Mambasa. The
defense pleaded that events took place in a territory that was different from
the Central African Republic(CAR). The charges which were faced by Mr. Bemba
were allegedly committed in the territory of CAR. Thus, it portrayed another
intervention by Bemba’s troops when the alleged events were claimed to have taken
place. The judges particularly said that the report inferred the role of Mr. Bemba (the accused) in this intervention, allegations of abuses that were
committed by his Movement for the Liberation of Congo. Therefore, the judges
concluded about the ability of the accused to take disciplinary measures and
about his power to prevent or repress the crimes being committed.[3]The Judges further admitted the report of FIDH (February 2002).
The prosecution claimed that the report documented violations of human rights
by various groups including MLC in the Central African Conflict. The judges
also admitted the report of Amnesty International. The prosecutor through this
report claimed that it showed Bemba’s awareness of his fighter’s capacity of
committing crimes and discussing crimes by the MLC in Bangui which took place
in 2001. The report was published in 2002.[4]
The defense opposed UN and NGO acceptance of accounts, arguing
that they would undermine the fact-finding function of the judges, as they
would represent "untested and often anonymous claims of offenses that
neither the Chamber nor the Defence had the chance to examine." The defense also questioned the author’s identity and their sources of data. Judges
observed that while the FIDH study referred to incidents outside the affairs of
the charges against Mr. Bemba, it outlined his troop’s prior involvement in
Central African land and allegation of abuses made by his soldiers against
civilians in Central Africa.Similarly, the Amnesty International report outlined a prior
action by the soldiers of the accused and the crimes they were supposedly
accused of sexual violence, rape, and pillage. This study also referred to the
MLC leadership's recognition of those accusations.The majority held that NGO reports could be deemed prima facie
reliable if they offered adequate guarantees of impartiality "The majority
reiterates its opinion that the admission of the NGO reports does not undermine
the fact-finding function of the Chamber since the determination of
admissibility does not in any manner predetermine the final evaluation by the
Chamber of the proof or the weight to be given to it," the judges held.[5]
Moreover, the majority of the judges indicated that for the
restricted purpose, NGO reports may be admitted and that the data they
contained may serve to corroborate other proof. Similarly, an essay released by
the BBC on 10 July 2001 entitled "DR Congo: Congolese Liberation Front
unit commander said arrested" was admitted as proof as the judges thought
it was important to determine the capacity of the accused to impose
disciplinary measures and his authority to avoid and repress crime.[6]The paper outlined Mr. Bemba's supposed announcement that the
commander of his militia unit sent to Bangui on July 8, 2001, was detained for
"poor supervision of troops," which supposedly resulted in the
looting and abuse of civilians.[7]
The judges rejected the prosecution's request to admit to
evidence a paper written by Paul Melly, a United Kingdom-based researcher,
entitled "Central African Republic – Uncertain Prospects." The judges
found that the paper did not appear to contain any information with the
potential to influence the decision of the chamber on the case.[8]
CONCLUSION
Indirect evidence is corroborated by other evidence of higher or
lower probative value.[9] In sum, this approach
enables the Chamber to make its determination according to article 61(7) of the
Statute, even if the evidence as a whole relating to one charge lacks direct
evidence, and is only supported by pieces of indirect evidence and finds that
more than one piece of indirect evidence having low probative value is required
to prove an allegation made.The Court in the Mbarushimana case highlighted the significance
of corroborating sources, where the prosecution had based much of its argument
on the accounts of publicly accessible articles from NGOs. The Court noted
following: Although no proof of an assault on the civilian population of
Busurungi on or about 28 April 2009 was submitted to the Chamber, On the basis
of the witness statements read in conjunction with UN and Human Rights Watch
reports, the Chamber was satisfied that there were significant grounds for
believing that three females were discovered dead near Busurungi, with injuries
and signs of rape. [10].
This, therefore, allows the Chamber to make its determination according
to Article 61(7) of the Statute, as per which, even if the proof as a whole
relating to one charge lacks direct proof and is only backed by parts of
indirect proof, provided that its probative significance allows the Chamber to
determine that the limit set in that article is being met, it is admissible.
About videos, movies, photos and audio recordings, the Katanga
and Ngudjolo Trial Chamber indicated that the Chamber will require proof of
originality and integrity before video or audio material can be admitted.[11] Thus, open-source
information is admissible in ICC under certain conditions which were mentioned
in the research paper.
Footnote
[1] Bellagio Report, THE
NEW FORENSICS Using Open Source Information to Investigate Grave Crimes,(2018),
available at https://www.law.berkeley.edu/wp-content/uploads/2018/02/Bellagio_report_2018_9.pdf (last visited on September
18, 2019).
[2]Open Source Evidence
on Trial, The Yale Law Journal, available
at: https://www.yalelawjournal.org/forum/open-source-evidence-on-trial (last visited on
September 19, 2019).
[3] Judges Admit NGO
Reports Into Evidence Against Bemba, available
at: https://www.ijmonitor.org/2013/07/judges-admit-ngo-reports-into-evidence-against-bemba/ ( last visited on
September 20, 2019)
[4] Judges Admit NGO
Reports Into Evidence Against Bemba, available
at: https://www.ijmonitor.org/2013/07/judges-admit-ngo-reports-into-evidence-against-bemba/ ( last visited on
September 20, 2019)
[7] Judges Admit NGO
Reports Into Evidence Against Bemba, available
at: https://www.ijmonitor.org/2013/07/judges-admit-ngo-reports-into-evidence-against-bemba/ ( last visited on
September 20, 2019)
[9] For a similar
approach, see Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN,
para. 121; ICTR, The Prosecutor v Kayishema and Ruzindanda, Case No. ICTR-95-I,
"Trial Judgment", 21 May 1999, para. 80.
[10] Mbarushimana (ICC-01/04-01/10-465-Red),
PTC I, 16 December 2011, para 135. [11] Katanga and Ngudjolo,
TC, ICC-01/04-01/07, 1 December 2009, para 24.
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