Admissibility Of Open Source Information In ICC With Reference To The Bemba Case


ABSTRACT

The admissibility of the open source information in the International Criminal Court is a debatable topic. After the judgement of Bemba Case the scenario of the admissibility and reliability of the open source 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.


INTRODUCTION

The topic of the research paper is the Admissibility and Credibility of Open Source Information in the International Criminal Court. Open Source Information is information which is available publicly. It can be accessed without taking any legal measures like seeking a warrant or employing other legal method. 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 group 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]

RELIABILITY OF NGO REPORTS WITH REFERENCE TO THE PROSECUTOR V HEAN PIERRE BEMBA GOMBO CASE

The ICC has prosecuted Jean-Pierra 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 an important linking evidence. The Facebook photos were objected by the defense. The question arose whether the photos had a 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 the 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 authentication.[2]

The defence 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 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 defence pleaded that events took place in a territory which 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 during the time 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 which 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 defence 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 offences that neither the Chamber nor the Defence had the chance to examine." The defence 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 pursuant 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 pursuant 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.

With regard to 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 are 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 Septemnber 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) [5] Ibid. [6] Ibid. [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) [8] Ibid. [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.


Submitted by,

Anurag Chauhan,

Chanakya National Law University, Patna.

© 2019 by AmicusX