Pro-defence commentators often criticise ICT’s acceptance of “hearsay evidence”. How valid is that criticism?

It is true that “hearsay” evidence (eg: newspaper reports, or testimony of people who were not present at the scene of crime) is not an ideal kind of evidence in terms of their quality. However, this principle applies to ordinary criminal cases. In case of trying International Crimes, the understanding is otherwise. Given the gravity of the crimes, and the environment/circumstances under which they are often committed, the rules of evidence apply differently. For instance, the International Crimes (Tribunals) Act 1973 (ICTA), in section 19 clearly states that the Tribunal is not bound by “ordinary” rules/principles of evidence. In trying international crimes under the ICTA “hearsay” evidence is admissible, provided such evidence meet the threshold of “probative value”. Furthermore, in practice, “hearsay evidences” are accepted only when they are corroborated by other evidence.

The questions whether a piece of evidence is of probative value or not, or whether there is sufficient corroboration of that evidence, are matters for the judges to decide. It is the judicial capacity/mind that holds the key in assessing any evidence including hearsay evidence. We need to remember that at the ICT, these are not ordinary judges. The ICTA requires that to sit at the Tribunal, the qualification of the judges needs to be very high. In fact, they must have equivalent qualification to be eligible to sit at the High Court Division of the Supreme Court. So if anyone says that they do not rely on the judges, they need to be reminded that these are the judges of highest possible qualification in the country. I don’t remember Amnesty International or Human Rights Watch ever doubting the standard of Bangladesh’s legal system generally or questioning the qualification of our judges in the last 40 years!!

Secondly, the relaxed rule of admitting “any evidence of probative value” is not a rule that ICTA invented. Statutes of other international tribunals have identical provisions, and for good policy reasons. So, saying that “hearsay” admittance is automatically flawed due to its nature would be fundamentally misconceived. Because, admitting hearsay evidence is not the end of the story, as there are competent judges to assess/weigh the probative value of each piece of evidence. It does not matter whether or not we like/support any particular judicial assessment on a particular piece of evidence. ICT judges are not here for a popularity contest.

And any day of the week, I would rather accept the views of the ICT judges on evidence over any Tom Dick or Harrys’.

(for twitter purposes . . .)
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Disclaimer: The views and opinions expressed, or the assumptions made within the analysis in this article are those of the author and do not necessarily reflect the official policy or position of International Crimes Strategy Forum (ICSF).