ICC’s Struggle with the Evidentiary Standard of Proof Beyond Reasonable Doubt

Article 66 of the Rome Statute mandates the International Criminal Court (ICC) to impose a conviction only when the guilt of the accused is proved “beyond reasonable doubt”. However, ICC’s determination of this evidentiary standard is shrouded in controversy. According to the critics, which include the Prosecutor and judges of the ICC, the Court has failed to correctly understand and apply the statutory requirement of proof beyond reasonable doubt.

This article is an attempt to decode the standard of proof beyond reasonable doubt and analyse whether or not the ICC has been successful in its implementation. The article takes into account the origins of the evidentiary standard, the interpretation attributed to it, and the jurisprudence established by ICC’s predecessor tribunals.

Origin and Meaning

The concept of proof beyond reasonable doubt finds its roots in Christian theology wherein convicting an innocent person was regarded as a mortal sin. In order to protect their salvation, jurors were advised to convict the accused only in the absence of any reasonable doubt regarding guilt. Thus, the emergence of the reasonable doubt doctrine was not to protect the accused but rather those adjudicating the trial. Though the concept of proof beyond reasonable doubt existed since ancient times, it did not make its appearance in the courts till the late 18th century. The very first mention of the evidentiary standard can be traced to the treason trials taking place in Dublin in 1798 wherein it was stated that if the jury has a “reasonable doubt” upon the evidence advanced against the accused, then he must be acquitted.

Over the years, there has been much disagreement on whether or not the standard beyond reasonable doubt should be defined. The argument against spelling out the meaning beyond reasonable doubt stems from the notion that it is a commonly understood term that is difficult to precisely define, and any attempt to do so only makes it ambiguous. However, various courts have opined that defining the standard beyond reasonable doubt ensures its correct application in criminal trials and have constructed a compelling definition of the same.

In Victor v Nebraska, Justice Ginsberg stated that the requirement of beyond reasonable doubt means that conviction must be imposed if the jury is “firmly convinced” of the guilt based upon the perusal of evidence. However, if there is a “real possibility” that the accused is innocent, then he must be acquitted. Almost all definitions concur that beyond reasonable doubt does not mean “beyond a shadow of doubt”, “absolute certainty”, or “moral certainty”. It is not “fanciful”, “speculative” or “imaginary”, but a doubt based on “reason”, “the logical processes of the mind”, and “evidence or the lack thereof”. Thus, if there exists a real doubt upon the guilt, rooted in reason and based on evidence, then a requirement of beyond reasonable doubt is not satisfied.

Jurisprudence Established by ICC’s Predecessor Tribunals

The International Military Tribunal at Nuremberg, established to try the Nazi war criminals, explicitly applied the requirement of beyond reasonable doubt. In France v Goring, the Tribunal ordered the release of Von Papen (served as Vice-Chancellor in Hitler’s cabinet) and Schacht (served as the Minister of War Economy in Hitler’s Cabinet) as the Prosecution failed to prove their guilt beyond reasonable doubt. This precedent was carried forward by the ad hoc tribunals established to adjudicate the war crimes committed in Rwanda (ICTR) and the former Yugoslavia (ICTY).

In Prosecutor v Stakić, the Appeals Chamber of the ICTY held that an accused could only be convicted if each element of the crime was proved beyond reasonable doubt. The Chamber also stated that this burden is met when “the inference drawn was the only reasonable inference that could be drawn from the evidence presented”. The “only reasonable inference” view was also endorsed by the ICTR. Thus, the judgements of the ad hoc tribunals suggest that a conviction not only necessitates all the elements of the crime to be proved beyond reasonable doubt but also that the guilt of the accused be the only reasonable inference emanating from the evidence.

ICC’s Application of Proof Beyond Reasonable Doubt

It has already been stated that Article 66 of the Rome Statute mandates the ICC to impose a conviction only if the guilt of the accused is proved “beyond reasonable doubt”. In Prosecutor v Mathieu Ngudjolo, the accused was charged with several counts of crimes against humanity and war crimes due to his alleged participation in the Ituri conflict. In the judgment pursuant to Article 74, the Trial Chamber acquitted the accused as his guilt could not be proved beyond reasonable doubt. However, the Prosecutor argued that the Trial Chamber’s verdict is not based on reason, logic, or common sense, and at best establishes “a hypothetical alternative reading of the evidence”. The Prosecutor concluded that “Trial Chamber, rather than applying the standard of proof beyond reasonable doubt, effectively required proof of the relevant facts to a degree of absolute certainty (i.e. beyond any doubt)”.

Thus, according to the Prosecutor, the beyond reasonable doubt standard does not demand that all alternative hypotheses based on evidence must point towards the guilt of the accused. Such an interpretation, if accepted, would amount to burdening the Prosecution to prove the guilt with absolute certainty.

In Prosecutor v Katanga, the Trial Chamber emphasised that the Prosecutor is required to prove, beyond reasonable doubt, the elements of the crime, as well as, the facts indispensable for imposing conviction. The Chamber further held that “finding an accused person not guilty does not necessarily mean that the Chamber finds him or her innocent. Such a determination merely demonstrates that the evidence presented in support of the accused’s guilt has not satisfied the Chamber beyond reasonable doubt”.

After examining the evidence, the Trial Chamber found the accused guilty beyond reasonable doubt for committing murder, directing an attack on the civilians, destroying the enemy property, and pillaging. In her dissenting opinion, Judge Wyngaert held the Majority’s view is erroneous as it fails to factor in a significant amount of missing crucial evidence, serious credibility issues with the prosecution’s witnesses, and the possibility of an alternative reasonable reading of the evidence. Citing the above reasons, she concluded: “How it is possible, under such circumstances, to arrive at any findings of such serious allegations beyond reasonable doubt eludes me”.

The standard of beyond reasonable doubt was again a subject of debate in Prosecutor v Thomas Lubanga Dyilo. In this case, the accused was charged with the war crime of conscripting children below the age of fifteen to actively participate in hostilities. The Trial Chamber, after the consideration of the evidence, found the accused guilty beyond reasonable doubt. Judge Ušacka delivered a dissenting opinion wherein she argued that witnesses of the Prosecution state they saw children seemingly under the age of fifteen participating in hostilities but they fail to provide any explanations as to how they made such an estimation of age. She further stated that the determination of age-based solely on physical appearance, without any scientific evidence or expert opinion corroborating it, cannot reach the threshold of beyond reasonable doubt.

Judge Ušacka contended that the standard of proof beyond reasonable doubt necessitates all the hypotheses based on the presented evidence must indicate the guilt of the accused. It has already been highlighted that the Prosecutor categorically rejected this interpretation of proof beyond reasonable doubt equating it with “proving the guilt with absolute certainty”. Thus, there exists a sharp divide amongst the organs of the ICC upon the meaning of the evidentiary standard of beyond reasonable doubt.

As the ICC continues to try a plethora of cases involving some of the most heinous crimes committed in recent times, the interpretation attributed to the standard of proof beyond reasonable doubt will be crucial in convicting the perpetrators. If the Court conceded that the standard of proof beyond reasonable doubt entails that all the hypotheses based on evidence should indicate guilt, it would not only overburden the Prosecution but also make it next to impossible to put war criminals behind bars. Thus, it is in the interest of justice to not define the standard of proof beyond reasonable in words that claim a degree of absolute certainty.

Conclusion

The analysis showcases ICC’s inconsistent application of the standard of proof beyond reasonable doubt. According to the Prosecutor, in acquitting Mathieu Ngudjolo, the Trial Chamber accepted that standard of proof beyond reasonable doubt necessitates that all the hypotheses based on evidence should indicate the guilt of the accused. However, Judges Wyngaert and Ušacka, in their respective dissenting opinions, state that the Trial Chamber failed to adhere to the same interpretation of proof beyond reasonable doubt when convicting Katanga and Lubanga Dyilo.

The debate also centres on the correctness of the “all hypotheses based on evidence should indicate guilt” interpretation. Simply put, reasonable doubt is a real doubt that stems from logic, common sense, and evidence (or its absence). Instead of complicating matters by fixating on a particular definition of this evidentiary standard, the ICC should focus on examining the evidence; upon such examination, if the Court is “firmly convinced” of the guilt, it should proceed with the conviction. However, if there exists a “real possibility” that the accused might not have committed the crime, then an order of acquittal must be pronounced.

 

Utkarsh Krishna is a recent graduate from Symbiosis Law School, Pune, and is currently working as a Judicial Clerk cum Research Assistant at the High Court of Jharkhand, India. He has a keen interest in constitutional law, human rights, and gender justice.

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