General Remarks on the Treatment of Medical Evidence by International Criminal Courts

[Extracts from the IRCT Publication Torture Journal Volume 20 No 3 2010]

International criminal tribunals will generally decide on indictments against key perpetrators of criminal acts in cases where the evidence is overwhelming. Individual pieces of evidence are therefore rarely evaluated and it is thus difficult to find indications of how these tribunals approach the evaluation of evidence in torture cases. [1]

While the international criminal tribunals have neglected to elaborate on their criteria for evaluation of evidence they have provided ample practice on the determination of expert status.

The International Criminal Tribunal for the former Yugoslavia (ICTY) has defined an expert as a person who “by virtue of some specialised knowledge, skills or training can assist the trier of fact to understand or determine an issue in dispute.” [2] This entails three distinct requirements:

1. the person must have specialised skills,
2. which can contribute to the illumination of an issue,
3. which is disputed by the parties.

This could for example be a forensic medical expert testifying on whether the medical symptoms of an alleged torture victim are consistent with his account of events, where the state subject of a complaint disputes this.

The admissibility decision of international criminal tribunals is guided by five main criteria:

• The objective test: The persons’ previous experience and knowledge will be evaluated through an examination of present and former positions, professional experience, and publication of scholarly articles. [3]

• Reliability and transparency: The tribunals will examine whether the expert knowledge is sufficiently recognised by the persons’ peers and whether the opinion delivered is prima facie reliable. [4] Furthermore, the tribunals require full transparency as to the methodology and fact relied upon in forming the opinion. This ensures that the basis of the opinion can be fully scrutinised by the tribunal and the opposition. [5]

• Relevance: The tribunal must determine whether the subject of the opinion is an issue that the judges are technically capable of solving on the basis of their own knowledge and common sense. This would leave an expert opinion irrelevant since the need for technical expertise would be absent.

• The “ultimate issue” rule: The tribunal must examine if the opinion will effectively decide the case before the tribunal. Expert opinions are therefore not allowed to address the criminal liability of the accused or most other legal issues. [6] The tribunals have applied this criterion quite rigorously and non-compliance may result in the complete rejection of the opinion depending on the prevalence of “ultimate issue” conclusions in the opinion. [7]

• The tribunal must only admit those parts of an opinion, which are within the experts’ field of expertise and based on the experts’ own observations. [8] Due to the presumption of a high probative value of expert opinions, this criterion is a key element in ensuring that the expert does not go beyond his “mandate”, thus protecting the basic fair trial rights of both parties.

This illustrates the challenge in determining the scope of opinions expressed by the experts. In determining the probative value of an expert opinion, the tribunals will not always be in a position to judge the reliability of the substantive contents. Therefore, focus will be on objective elements such as the impartiality of the expert and the application of an academic methodology in drawing conclusions. Here it is essential that the expert avoid making statements that are argumentative or otherwise indicate a lack of impartiality. One of the key pitfalls for medical experts providing opinions in torture cases is the risk of pronouncing themselves on issues of law. This could either be through the attempted identification of the perpetrator or the labeling of a certain treatment as torture. This can either lead to a total dismissal of the expert opinion or a significant decrease in the probative value afforded the opinion.

It is very important to remember that the crime of torture has four elements: severe pain or suffering; intentional infliction; for a specific purpose; and committed by a state agent. The medical expert can provide advice on a range of issues, such as on the link between the symptoms and the alleged treatment, physical and psychological torture methods and symptoms, examination and treatment methods and possibly also the level of pain and suffering incurred by the alleged victim. However, the medical expert does not have expert knowledge in determining the identity of the perpetrator, the possible intent and purpose of the treatment suffered or what level of suffering legally amounts to torture. [9]

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1. Camille Giffard and Nigel Rodley, The approach of international tribunals to medical evidence in cases involving torture, in Michael Peel and Vincent Iacopino, Greenwich Medical Media Limited (2002) p. 26.

2. Prosecutor v. Galić, Case No. ICTY-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002, p. 2. See also Prosecutor v. Brđanin, Case No. ICTY-99-36-T, Decision on Prosecution's Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4; Prosecutor v. Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94 bis, 1 April 2004, p. 4; Prosecutor v. Martić, Case No. ICTY-95-11- T, Decision on Prosecution's Motions for Admission of Transcripts Pursuant to Rule 92 bis (D) and of Expert Reports Pursuant to Rule 94 bis”, 13 January 2006, para. 37.

3. ICTY, Prosecutor v. Slobodan Milošević (Decision), (1 March 2006, Case No. ICTY-02-54-T)

4. ICTY, Prosecutor v. Popović et al. (Decision), (30 January 2008, Case No. ICTY-05-88-AR73.2) § 22

5. ICTY, Prosecutor v. Galić (Decision), (27 January 2003, Case No. IT-98-29-T)

6. ICTY, Prosecutor v. Hadzihasanović and Kubura (Decisions), (11 February 2004, Case No. ICTY-01-47-T)

7. ICTY, Prosecutor v. Kordić and Čerkez (Transcript of proceedings on 28 January 2000), (28 January 2000, Case No. ICTY-95-14/2-T) Transcript pp. 13305-13307 (complete rejection of opinion) and ICTY, Prosecutor v. Boskoski and Tarculovski (Decision), (17 May 2007, Case No. ICTY-04-82-T) §§ 13-14 (noted scarcity of “ultimate issue” conclusions and accepted the report, in part)

8. ICTY, Prosecutor v. Dragomir Milošević (Decision), (21 August 2007, Case. No. IT-98-29/1) § 10

9. For more information on the treatment of medical evidence before International Criminal Courts, refer to the IRCT publication : Torture Journal, Volume 20, No 3, 2010, pp.148-151 accessible on: http://www.irct.org/library/torture-journal/latest-issue.aspx (last accessed on 24 February 2011)