1. Proving the crime of torture, and inadmissibility of evidence obtained by torture in international criminal law Helen Brady Senior Appeals Counsel and Head of the Appeals Section, Office of the Prosecutor, ICC

2. Proving the crime of torture in international criminal law Key distinctions: – Likelihood that person on trial is not a direct physical perpetrator; – Likelihood that torture occurred on large scale (hundreds, thousands of Vs?) and that the crime forms part of a course of conduct involving multiple other serious crimes; – Victims and direct physical perpetrators may not be identified; – Investigation/prosecution likely to occur many years from event and relies on witness recollection, documentary evidence etc; – Jurisdictional factors: the “gravity” requirement for crimes – minimises occasions in which “borderline” conduct is charged – Key issue in international criminal trials is usually “linkage” and not “crime base””; nature of conduct inflicted upon victims may not be as vigorously disputed.

3. Torture as a crime against humanity (article 7(1)(f) ICC Rome Statute) In addition to proving a widespread or systematic attack directed against a civilian population, proof that: – The perpetrator intentionally inflicted physical or mental pain or suffering upon one or more persons; – such persons were in the custody or under the control of the perpetrator; – The pain or suffering did not arise from, or was otherwise incidental to, lawful sanctions; and – The perpetrator knew or intended their conduct to be part of the widespread or systematic attack.

4. Torture as a war crime In addition to proving a nexus with an armed conflict, must prove that: – The perpetrator intentionally inflicted severe physical or mental pain or suffering upon one or more persons; – The victim was a protected person under Geneva Conventions, or a person hors de combat, or a civilian, medical or religious personnel taking no active part in the hostilities; – The perpetrator acted for a prohibited purpose such as obtaining information or a confession, punishment, intimidation, coercion or any reason based on discrimination of any kind; – The conduct took place in the context of, and was associated with, an armed conflict; and – The perpetrator knew of the factual circumstances establishing the armed conflict

5. Torture cases at the ICC Examples: One case currently in pre-trial charging torture as CAH and as a WC (Ongwen). ICC has issued four arrest warrants against suspects in the Darfur situation (Harun, Ali Kushayb, Al Bashir, Hussein): charges include torture. P has determined a reasonable basis to believe torture was committed in situations under investigation e.g. CAR II.

6. Torture cases at ICTY Delalic (1998): TC gave illustrative catalogue of conduct which could be considered to meet the required degree of severity. Furundzija (1998): conviction for torture as a war crime and outrages against public dignity including rape as a war crime. Accused interrogated victims while they were beaten, sexually assaulted and raped.

7. ICTY cases Brdanin (2007): example of “legal approach” to severity analysis. Mrksic (2007): TC made observations on the level of severity of the mistreatment which could amount to torture: – The fact of imprisonment of itself did not in the circumstances of the case amount to an act of necessary severity; – The conditions in which the detainees were held (stress positions, very spartan conditions in a hangar), the fearful atmosphere, sounds of screams, moans, cries for help, mayhem- sufficed to cause serious mental or physical suffering. – The administration of beatings including with sticks, rifles butts, chains, crutches and boots – sufficed to cause mental or physical suffering; – The deprivation of medical care did not, in the circumstances of the case, amount to an act of the necessary severity.

8. Inadmissibility of evidence obtained by torture: ICC Article 55(1) Rome Statute: any person under investigation shall (a) “neither be compelled to incriminate himself or herself or to confess guilt nor “(b) “be subjected to any form of coercion, duress or threat, to torture, or to any other for of cruel, inhuman or degrading treatment or punishment”.

9. Inadmissibility of evidence obtained by torture: ICC Article 69(7) Rome Statute: – Evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

10. Inadmissibility of evidence obtained by torture: ICTY ICTY has similar exclusionary rules: rule 89(D), and rule 95 (evidence inadmissible if “obtained by methods which cast substantial doubt on its reliability or if it admission is antithetical to, and would seriously damage, the integrity of the proceedings.”) ECCC: use of evidence obtained under torture in Case No 2.