Forensic archaeology, ad hoc counsel and ethics in the ICC

This article considers the duties of counsel and expert ethics in the context of the preservation of evidence in the investigation of international crimes.

As is well known, the International Criminal Court (ICC) simultaneously possesses jurisdiction over a ‘situation’ and individual ‘cases’. In the context of a situation there may be both victim participation and/or evidentiary issues which may affect the cases against individual accused yet to be identified by the court. This can involve the appointment of so-called ‘ad hoc’ defence counsel to represent the interests of these future accused.

Preserving evidence of international crimes, such as war crimes and crimes against humanity, occurs in the pre-trial phase of the case before charges are pleaded or even confirmed. It generally falls into two categories: physical evidence and what has become known as ‘vulnerable’ evidence. It may occur when the identity of an accused person is unknown, and it engages the duties of both counsel and experts.

Deploying Article 56

Under Article 56 of the Rome Statute, ad hoc defence counsel may be called on to test evidence (such as witness testimony) which represents a ‘unique investigative opportunity’ years before a trial, including when that counsel is not eventually instructed to act for the accused, and can be prior to a defendant being identified. In respect of timing parameters, the power conveyed by Article 56 is therefore broad. ‘Unique investigative opportunity’ is not defined in the Rome Statute. However, para 1(a) makes it clear that the purpose of Article 56 is the preservation of evidence for trial, to ‘take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial’. No specific procedure to be followed in such an instance is set out. Paragraph 1(b) states the Pre-Trial Chamber may take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. A safeguard remains through para 4: evidence preserved under Article 56 is not automatically admissible at trial, instead its admissibility is governed by Article 69 of the statute and will be ‘given such weight as determined by the Trial Chamber’.

Article 56 has been deployed recently in relation to ‘vulnerable evidence’ in the case of Dominic Ongwen where the Prosecution brought applications in the Pre-Trial Chamber (PTC) to preserve testimony of eight witnesses in total, alleged to be victims of sexual and gender-based violence. Defence arguments that this would violate Mr Ongwen’s rights were rejected by the PTC. Upon application by the Prosecution, the Trial Chamber then duly admitted the preserved evidence. The Defence raised arguments seeking to limit the application of Article 56. The Trial Chamber rejected these limitations, stating that any decision on whether evidence may not be available subsequently for trial necessarily involves some level of speculation and prediction. The Trial Chamber determined that the Article 56 testimony was entirely reliable and ultimately convicted Ongwen of a number of offences on the basis of the pre-recorded testimony under Article 56.

Ethical duties for ad hoc counsel

Generally, the role of defence counsel in an adversarial system is to fearlessly present the defence case, but that case may not be known at the time of investigation. The dangers are that in engaging at an early stage, ad hoc counsel could make things harder for counsel eventually instructed, either by not picking up enough issues or conversely, exposing too many, to the detriment of the accused person either way. The ICC Code of Conduct comes with a solemn undertaking by counsel before taking office:

‘I solemnly declare that I will perform my duties and exercise my mission before the International Criminal Court with integrity and diligence, honourably, freely, independently, expeditiously and conscientiously, and that I will scrupulously respect professional secrecy and the other duties imposed by the Code of Professional Conduct for Counsel before the International Criminal Court.’

Counsel must act honourably, independently, and freely and must not (a) permit his or her independence, integrity or freedom to be compromised by external pressure; or (b) do anything which may lead to any reasonable inference that his or her independence has been compromised. But, to what extent is independence primary to the role played to represent a client? In the absence of instructions, while no doubt welcoming the notion that the defence can be involved from the start, ad hoc counsel must tread a cautious line, ensuring that reasonable enquiries are made during the pre-trial stage that may in future be useful to an accused person and maintaining respect for the process whereby the gravest global crimes are tried.

Ethical issues for experts

For experts, the issue is similar. For example, in relation to physical evidence, forensic archaeologists have been called upon in international crime scene investigations involving genocide investigations to search, locate and excavate clandestine graves to collate evidence that can reconstruct the actions of the perpetrator(s) and be applied to a legal investigation. Preservation of evidence is a literal concept in this context.

Care must be taken for such experts to operate impartially rather than with a determination to counter any potential defence. Indeed, forensic scientists are generally bound by their domestic Codes of Practice and Conduct regulations when the collection of evidence is in the jurisdiction of a state party. There was also a focus on quality in a recent ICC review.

The mass graves associated with the Srebrenica genocide in 1995 in Bosnia and Herzegovina yielded unique preserved evidence of ten Seiko 5 automatic watches, which helped determine time, day and date of the killings and also whether the bodies had been moved from a number of primary graves to secondary and tertiary sites. This evidence, while not conclusive evidence of establishing when the person died, could be used with other contextual artefacts from the graves and could be used to potentially assist in strengthening other evidence, evidence which can only be used if preserved in the appropriate manner to then be used together to create a reconstruction of events for the court. There lies the skill of the expert: to be able to piece the evidence together correctly in such a way that the culmination of the evidential story becomes useful to counsel and the court, when isolated pieces of evidence may not have been strong enough alone. With this comes the inevitability of scrupulous cross-examination from the other side and so both the legal and forensic teams have to be transparent about their ethics, methods and final results of their evidence.

Weighing the balance

In taking part in such an investigation, for ad hoc counsel, it is not just a question of making sure such evidence is properly preserved and handled but considering where the line is drawn in giving information to experts and likely instructions from future accused persons. It comes with at least a risk that both counsel and experts may be the subject of enquiry into the role they played in how the evidence was uncovered. This alone may create a conflict whereby ad hoc counsel may not be able to put themselves forward as trial counsel in the future. The key for practitioners must be in ensuring that balance is achieved between preserving evidence and protecting interests of future defendants.