Free Evaluation of Evidence: Does the icc need a Law of Evidence?

Abstract

The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.