Editors: Kai Ambos, Alexander Heinze and Philipp Ambach

The Project’s aim is to publish a commentary on the law of evidence at International Criminal Tribunals. A number of eminent legal practitioners and scholars in the field of International Criminal Law give a detailed rule-by-rule analysis of the relevant body of law on evidence at International Criminal Courts and Tribunals. This includes a critical assessment of differing approaches across the institutions as well as jurisprudential trends and developments. It therefore serves as a comprehensive guide for the practitioner and scholar alike for the law on evidence as practiced on the international level.

Notwithstanding the existing research on International Criminal Evidence, the applicants’ proposed project of creating a commentary on International Criminal Evidence is unparalleled. We strike a balance between the growing jurisprudence of International Criminal Tribunals and academic opinions. Due to the strong practitioners’ perspective, we focus on the case law of the International Criminal Court (ICC) and that of other tribunals, thereby moving away from an emphasis on academic opinions. The classification and appraisal of the growing ICC jurisprudence within the commentaries will be a true asset for any International Criminal Law practitioner.

Due to the high relevance of the project, the applicants envision the project to be completed and the commentary to be published no later than in course of the year 2019.

The renowned publisher C.H. Beck has agreed to publish the book in its international program (Beck international with Hart, UK) and will already announce its publication during Frankfurt Book Fair 11-15 October 2017.

List of Authors

Topical list of major issues relating to evidence and assigned author

I. Evidence: Context and Introduction

1. Conceptual foundations (Kai Ambos)
2. Burden / standard of proof (Dov Jacobs)
3. Overview of modes and forms of evidence in various procedural stages (Philipp Ambach)

II. Different types of evidence

1. General rules (Yongjune Min)
2. Witness statement; Viva voce vs written statement (Pubudu Sachithanandan)
3. Hearsay evidence (Jesse Leff)
4. Expert evidence [excl. disclosure-related issues; see infra] (Elizabeth Little)
5. Statement and testimony of the accused (Michael Karnavas)
6. Documentary evidence (Fergal Gaynor)
   • Indirect material
   • Bar table motion
7. Forensic evidence (David Re)
8. Alibi evidence (Parvathi Menon)
9. Circumstantial evidence (Keith Raynor)
10. Amicus Curiae (Hannah Woolaver)
11. Evidence by victims and victim representatives [alternatively: “Views and concerns of victims”] (Enrique Carnero Rojo)
12. Judicial notice and agreed facts (Silva Hinek)

III. Assessment of evidence (editing Alexander Heinze)

1. General criteria / different assessment of different types of evidence/ applicable standard (Vladimir Tochilovsky)
2. Authenticity and reliability (Helen Brady)
3. Relevance and probative value (Rudina Jasini)
   • Inkl. translation
   • Weight against prejudicial effect
4. Corroboration of different types of evidence (Matt Carlson)

IV. Collection of Evidence

1. The Role of the Prosecutor (Bob Reid)
   • Fugitives Component
   • Continuation of Investigation
   • Archiving of evidence
2. The Role of the Chambers (incl. site visits) (Stefanie Kuefner/ Kelly Schmidt)
3. Role of the Defence Lawyer (Kate Gibson)
4. Various forms of legal assistance/cooperation between States and International Criminal Courts (Pascal Turlan)
5. Intermediaries (Colin Black)

V. Disclosure of evidence

1. Prosecution Disclosure (Alexander Heinze)
   • General Remarks
     • Definition of ‘disclosure’ in the material
     • Disclosure and Human Rights
   • Exculpatory Evidence
   • Documents and Tangible Objects
   • Witness Disclosure and limitations
   • Notice (esp. ad hoc Tribunals) Art. 76(1)(a)/ DCC, pre-trial briefs in general
   • Translation of Disclosed Material
2. The Role of the Chamber and the Registry (Eleni Chaitidou)
   • Disclosure Relating to an arrest warrant
   • Disclosure prior and after the Confirmation Hearing
3. Defence and victim disclosure (Chris Gosnell)
   • Disclosure by the defence
   • Disclosure to and from victim representative
   • Notice
4. Forms to and restrictions of disclosure and the consequences of non-disclosure (Matt Halling)
   • Disclosure versus confidentiality obligations
   • Required consent of third party
   • Failure to meet disclosure obligations [and remedies]
   • Including Delayed disclosure / withholding evidence
   • Intermediaries
   • National security interests (Art. 72)
   • Redactions

VI. Admissibility of evidence

1. Admission of evidence and reasons for inadmissibility of evidence (Beti Hohler)
2. Exclusion of evidence (Yvonne McDermott)
   • Means of obtaining evidence incl. unlawfully obtained evidence
   • Practice to date

VII. Presentation and Modes of Evidence

1. Trial Chamber’s Control over the Presentation of Evidence (Robert Heinsch)
2. Forms of Examination (Matthew Gillett)
   • Key Rule: 140 ICC RPE
   • Hostile Witnesses
3. Prior recorded testimony (Clare Lawson)
4. Witness preparation / witness coaching (Liz Heffernan)
5. Oath (Amir Cengic)
6. Specific regimes for vulnerable witnesses (Aditya Menon)
   • Sexual violence victims/ corroboration requirements
   • In camera procedure
7. Immunity from testifying (including compellability of a witness) (Mariya Peykova)
   • Compellability
   • Immunity [Only Rule 73 ICC RPE, not Rule 74]
8. Self-incrimination (Karim A.A. Khan)
9. Electronic Courts and the Challenges in Managing Evidence (Thomas Koerner)
10. Plea Bargaining/ Admission of Guilt (Nancy Combs)

VIII. Evidence at Sentencing and Post-Trial (editing Philipp Ambach)

1. Evidence at Sentencing (Gideon Boas)
2. Evidence in reparation proceedings (Elena-Alexandra David)
3. Additional evidence on appeal (Barbara Goy)
4. New evidence through review / revision + new evidence at re-trial (Emiliya Viktorova)