I. INTRODUCTION

This chapter addresses the experience of international criminal courts regarding the admissibility of NGO reports as evidence. International jurisprudence stresses the necessary caution that must be exercised when considering the admission of this type of evidence. Such precedents should serve as a best practice guide for a Swedish court to determine what factors to consider when deciding upon the admissibility of such information as well as assessing its relevance, credibility, reliability and weight. The application of any standards lower than those advanced in international criminal proceedings would be incompatible with the effective protection of the rights of those under investigation. The precedents from international courts and tribunals reflect basic, minimum standards compatible with international law and internationally guaranteed human rights. As Sweden seeks to take on the responsibility of prosecuting international crimes under the laws of universal jurisdiction it ought to apply international standards.

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When held to international standards, the considerable evidence of bias, unreliability, flawed research and the absence of accountability in the NGO reports submitted to the Swedish Prosecutor make their use in the criminal proceedings unconscionable. These observations are set out in detail in Chapters 5-8.

 

II. INTERNATIONAL STANDARDS - FACTORS RELEVANT TO ADMISSION AND RELIANCE ON NGO REPORTS

Over the years, international criminal tribunals have shown an increasing wariness to rely on reports prepared by advocacy groups, NGOs and international organisations and have generally set strict conditions for their admission, in particular regarding the need for corroboration. International jurisdictions have generally limited their reliance upon such reports to secondary factual issues rather than material issues going directly to the question of the responsibility of the accused. For the purpose of determining the admissibility of evidence, the basic requirements of relevance, reliability, credibility, probative value and authenticity must be established by the tendering party.

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A particular problem faced by most, if not all, authors of NGO reports is that they communicate with witnesses through interpreters and there is no guarantee of the correctness of the interpretation of their questions and the answers given.

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The jurisprudence found in the international criminal tribunals sets out a number of core considerations that determine whether a Chamber can, in the reasonable exercise of its discretion, admit NGO reports and rely on them for the purpose of its findings. These factors include the following:

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i. The source of the information, including whether it is the result of direct observations or hearsay (and degree thereof) and whether the source is identifiable or anonymous;

ii. The methodology used and whether it was sufficiently reliable;

iii. The timing of the report, in particular whether it was contemporaneous with the reported events;

iv. The possibility to question the author of the report and/or those who contributed information;

v. The nature of the allegations and statements contained in the report, in particular, whether they touch upon the conduct and responsibility of the accused;

vi. The disputed or undisputed nature of the evidence;

vii. The effect on the rights of the accused; and

viii. The prejudice that the admission of such evidence would cause to the accused

 

When assessing the source of the information, in the case of Katanga and Ngudjolo before the

International Criminal Court (“ICC”), the Trial Chamber held as follows:

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“[…] [R]eports emanating from independent private organisations or governmental bodies of third States can be considered prima facie reliable if they provide sufficient guarantees of non-partisanship and impartiality. They should further include sufficient information on their sources and the methodology used to compile and analyse the evidence upon which the factual assertions are based. If such particulars are not available, either from the reports themselves or from their author(s), the Chamber cannot assess the reliability of the content of the reports; it is therefore unable to qualify those documents as sufficiently reliable to be admitted into evidence. Moreover, where such reports are based, for the most part, on hearsay information, especially if that information is twice or further removed from its source, the reliability of their content is seriously impugned.”cdliii

 

The basis on which statements and assertions contained in a report are made and the ability to identify and ascertain their reliability are essential to the court’s evaluation of the evidence. In Boskoski, before the International Criminal Tribunal for the Former Yugoslavia, the Trial Chamber noted that it would approach the content of a Human Rights Watch report with caution considering that aspects of the researcher’s observations may have been influenced by media reports.cdliv The Chamber also noted that information contained in the HRW report was not obtained contemporaneously (but 11 days after the events) and that the report was “sourced primarily by unchallenged accounts” which had not “been tested against the other differing accounts which the Chamber has heard”.cdlv While the report was ultimately admitted, reliance upon it was minimal because of its evident shortcomings.

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Regarding authorship, in Milutinovic before the ICTY, OSCE documents for which there was no indication as to who had generated them were not admitted.cdlvi Insufficient information about the authorship and sources of information within a report prevents the Defence and the Court from being able to test its reliability and credibility.

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In Ruto at the ICC, the Trial Chamber rejected the admission of a number of NGO reports based on a range of factors, which it held undermined the reliability of the information contained therein. cdlvii For example, the Chamber did not admit a report on the post-2007 election violence by the Kenya National Commission on Human Rights. Although the Chamber deemed it was relevant, it did not admit the document as “the report [did] not reveal the identity of persons interviewed in preparation of the report and a significant number of the report's findings emanate[d] from other sources, such as newspapers.”cdlviii

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The Chamber also refused to admit a UN report from the OHCHR Fact-Finding Mission to Kenya stating that the “probative value of the document” was “limited by reason of the lack of clarity on how the information was collected, the hearsay nature of much of the content and the anonymity of the sources of information.”cdlix The Chamber noted that OHCHR reports, while “compliant with methods suited to the purposes of human rights work, are generally not intended for use in a court of law.” The Chamber also found that “reliance on this report in respect of central questions at issue may not be appropriate and could amount to an abdication of the fact-finding functions of the Chamber.”cdlx

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The Chamber also refused to admit a report from the International Crisis Group ‘Kenya in Crisis’ on the basis that the probative value of the report was “limited in that most of the sources of information are anonymous and there is little or no information provided as to how the evidence was obtained or the methodology of how the facts were gathered.” The Chamber also held that it would not be appropriate to rely on the report in respect of matters that were central to the case.

 

In order to assess the reliability of the source of information, a court must also assess the degree to which it constitutes hearsay. While hearsay evidence is not inadmissible per se before international criminal tribunals, it is generally accepted that its character as hearsay can affect its weight and reliability.cdlxi This is particularly so where the hearsay is several times removed and when the source is anonymous. The reliability of hearsay is a prerequisite for the attribution of probative value as the Appeals Chamber explained in Aleksovski:cdlxii

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“[…] Since such evidence is admitted to prove the truth of its contents, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose; or, … the probative value of a hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.”cdlxiii

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When assessing the probative value of hearsay evidence, it is necessary to know the source of information, the identity of the initial source, how the source learned about the facts and the number of intermediaries through which the information has passed.cdlxiv

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The fact that the source of the information is unknown or anonymous is of primary importance in

deciding upon the admissibility and use of such reports. The ICC Pre-Trial Chamber in Mbarushimana held that although the use of anonymous witness statements and summaries of anonymous witness statements is not excluded in principle at the pre-trial stage for purposes of confirmation of charges, such evidence may be taken to have a lower probative value in order to counterbalance the disadvantage that it might cause to the Defence.cdlxv In assessing information in documents produced by Human Rights Watch, the Chamber stated that it would approach the matter on a case-by-case basis and that, as a general principle “the Chamber finds that information based on anonymous hearsay must be given a low probative value in view of the inherent difficulties in ascertaining the truthfulness and authenticity of such information. Accordingly, such information will be used only for the purpose of corroborating other evidence.”cdlxvi

 

The anonymity of the source of the information or claim contained in the report is also highly relevant to the admissibility and weight of such evidence. In criminal proceedings, anonymity prevents effective verification of the reliability of the source and renders confrontation of such evidence all but impossible.cdlxvii The careful and circumspect approach of the Gbagbo Chamber at the ICC to such evidence illustrates the manner in which it is typically approached at the international level.cdlxviii

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In that case, the Chamber explained that although there was no general rule against hearsay evidence, such evidence “will usually have less probative value. Reliance upon such evidence should thus be avoided, wherever possible. This is all the more so when the hearsay in question is anonymous, in the sense that insufficient information is available about who made the observation being reported or from whom the source (irrespective of whether the source is a witness interviewed by the Prosecutor or a documentary item of evidence) obtained the information.”cdlxix

 

The Chamber explained that reliance on anonymous hearsay prevents the Defence from being able to investigate and challenge the trustworthiness of the source of the information.cdlxx It also prevents the Chamber from being able to determine probative value and determine whether or to what extent anonymous hearsay in documentary evidence corroborates other evidence of the same kind. This is because it will usually be too difficult to determine whether two or more unknown sources are truly independent of each other.cdlxxi Heavy reliance on NGO reports and press articles with regards to key elements of the case “cannot in any way be presented as the fruits of a full and proper investigation by the Prosecutor.”cdlxxii

 

The degree of hearsay of the proposed evidence will also be a factor relevant to assessing the admissibility and, if admitted, the weight and reliability of the evidence. In Milutinovic at the ICTY, the Trial Chamber found that reports offered in evidence contained no explanation of the conditions or duration of interview, number of interviewed persons and similar details, and that they constituted second-hand hearsay which weakened any probative value they might have had.cdlxxiii

 

Sufficient indicia of reliability have to be evident from the reports themselves or by the witness through whom the statement is tendered can give such evidence.cdlxxiv

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In cases where reports contain no explanation of the conditions or duration of interviews, or the number of interviewed persons and which have constituted second-hand hearsay, their admission has been denied.cdlxxv

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In Strugar before the ICTY, the Chamber refused to admit reports prepared by an NGO cataloguing

damage since the Prosecution led no evidence as to the way in which these reports had been prepared.cdlxxvi In Djordjevic, OSCE documents were not admitted in evidence since there was not enough information concerning the circumstances in which they were compiled.cdlxxvii In Karemera, before the ICTR, the Chamber refused to admit NGO reports since the method of enquiry used to produce the reports was not clear, as the Prosecutor had failed to provide any such explanation.cdlxxviii

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Consideration of the timing of the information collection process is also highly relevant to the question of admissibility. Where information was collected some time after the events concerned, Chambers have been particularly reluctant to rely upon such information assuming that it would lose its immediacy, credibility and reliability. In Boskoski, a report prepared two years after the event was not admitted into evidence.cdlxxix

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Indications of the Prosecution’s own efforts to verify and corroborate the evidence contained in NGO reports are also important considerations. The absence of such indication would constitute a strong factor militating against the admission of the report as unverified. The remarks of the Gbagbo Pre-Trial Chamber are revealing in this regard as set out above.cdlxxx

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The possibility for the accused to question the author of the report is an important consideration as regards the admissibility and weight to be given to such evidence and to the fairness of proceedings.cdlxxxi

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In Boskoski, Gotovina, Milutinovic and other cases before the ICTY, the authors of NGO reports tendered in evidence were called to testify regarding the process of collecting information and preparation of their reports. This provided the Defence with an opportunity to test the credibility and reliability of the reports they had prepared.

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The ability to question or cross-examine the author of such a report cannot however make up for the Defence’s inability to question (and, as the case may be, challenge) those who provided that individual with the underlying information on which he/she based the report.cdlxxxii The actual words spoken by interpreters in relaying questions and answers will be highly significant and whether or not there are recordings of the interviews.

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Requests for admission of reports detailing alleged crimes have thus been denied on the basis that, inter alia, the reports set out allegations of criminal conduct made by people who claimed to be the victims of, or witnesses to crimes, and the court had no opportunity of hearing any of the people upon whose statements the reports were based. As a result, the tribunal was not in a position to assess the reliability of factual connections contained therein.cdlxxxiii

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In Milutinović, the Trial Chamber applied this principle to the question of admission of Human Rights Watch reports tendered through the lead HRW interviewer and author of the reports.  The Trial Chamber – noting in particular the anonymity of the interviewees – denied admission of the report on the basis that it was not “in a position to assess the reliability of the factual contentions contained therein.”cdlxxxiv

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The Trial Chamber specifically held that:

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“neither the report’s acknowledgement of [the] problems, nor the opportunity to cross-examine one of the authors and editors of the report, can adequately replace the opportunity to test the reliability of any of the person’s making the statements. The Trial Chamber does not have sufficient material to satisfy it of the general reliability of the information on which this report is based.”cdlxxxv

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Also relevant to the question of the admissibility and weight of such reports is the question of the nature of the allegations contained therein. Whilst Chambers have sometimes relied upon reports to establish secondary, background or contextual, facts relevant to the case, they have been extremely reluctant to rely upon such reports to establish facts directly relevant to establishing the responsibility of the accused. When admitted, international criminal tribunals have generally relied on such reports for the purpose of establishing facts that were not in dispute between the parties or did not form a significant part of the defence case.

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Furthermore, the effect the admission of the evidence would have on the fundamental rights of the accused to confront and challenge the case against them is also directly relevant to the admissibility of such reports. Consideration of the overall fairness of proceedings must therefore guide the judiciary when deciding whether or not to admit such evidence and whether to rely on any such report. As a result, international criminal tribunals have said on multiple occasions that they would not rely on such reports unless corroborated.cdlxxxvi Such evidence is not reliable, on its own, to serve as a sole basis for any factual finding.cdlxxxvii Moreover, before admitting evidence, a Chamber must be careful to ensure that it is not unfair to admit the disputed material.cdlxxxviii In this context, a Chamber will need to consider two questions: (i.) what causes the prejudice; and (ii.) what is the prejudice.cdlxxxix

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The approach of the ICC Pre-Trial Chamber in Ruto is particularly helpful in this regard,cdxc noting that the general rule on admission is subject to the Chamber's power to exclude evidence, which may include for reasons of fairness, expeditiousness and public policy.cdxci

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III. CONCLUSION

A Swedish court seeking to try international crimes should have regard to international jurisprudence on the admission and weight to be attached to NGO reports. When prosecuting international crimes under the laws of universal jurisdiction, Sweden ought to apply the same standards as applied in international courts and tribunals. Evidence of bias, unreliability, flawed research and the absence of accountability make any use of the NGO reports in criminal proceedings unconscionable.