The Exclusion of Improperly Obtained Evidence at the International Criminal Court: A Principled Approach to Interpreting Article 69(7) of the Rome Statute

Abstract

This work examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the work proposes how the ICC should interpret its exclusionary rule. The paper discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating to exclusionary rules at other international criminal tribunals is surveyed. The paper ends by articulating what a basic test for exclusion at the ICC should look like, and examines how such a rule would operate in respect of all of the different exclusionary doctrines discussed earlier in the work.

Keywords: evidence, exclusion, tainted, 24(2), exclusionary rule, breach, international criminal procedure, poisoned tree, standing, derivative evidence, good faith, deterrence, dissociation, vindication, compensation, condonation