Session 4: Judges and Evidence
Mental Health Professionals as Expert Witnesses Before the ICC
Marina Fortuna, University of Groningen
Chair: Hemi Mistry, University of Nottingham
Panel Report by: Rasara Jayasuriya and Emily Sainsbury
Using the case of Ongwen as a case study, Fortuna considered the criteria that could help participants in the courtroom better access the value of expert evidence. Often it is difficult for non-experts to effectively grasp how much weight they should place upon the evidence experts provide and there have been concerns about too much trust being placed upon expert evidence or lawyers over-rely on the application of formalistic or legalistic, and often inaccurate, criteria to determine the reliability and probative value of evidence provided by experts in the context of the wider discussions within the case. Mental health expert evidence was the focus of this assessment but the conclusions will be useful and indicative of other experts also.
In the case of Ongwen, a defence expert testified to the defendant’s suffering of severe depression, obsessive compulsive disorder, and post-traumatic distress disorder. The defence argued that these conditions provided the basis for excluding the defendant’s individual criminal responsibility for his involvement in crimes he had been accused of under Article 31(1)(a) of the Rome Statute. However, the Prosecution presented three experts who took the view that the impact of these conditions had not rendered him lacking in capacity for the purposes of Article 31(1)(a). In such instances, where there is a conflict in expert testimony, the judges need to develop a set of principles to resolve this disagreement.
The Lubanga trial identified, for the first time, the main criteria for the assessment of experts: their competence, methodology and corroboration. Competence is a less important but initial consideration that requires consideration of the proximity of the expert’s experience to the information and assessments they have drawn and are discussing. In the Ongwen case, for example, having experience in transcultural psychiatry was particularly important as part of the assessment of his competence and mental condition. The experts’ standing and qualifications are also important for considering their competence.
More significantly, the judge must consider the methodology of the expert. In this regard, specific issues that need to be considered include, whether the expert took a therapeutic or a forensic position when assessing the defendant, whether they used scientifically validated instruments and what limitations they faced, such as differential diagnosis or scientific/diagnostic limitations. At the same time, it is important for lawyers not to attach too much significance to issues, such as an expert’s use of DSM-IV rather than DSM-V, which make no material difference to the experts’ substantive assessment or methodology.
Corroboration is as important and is considered in tandem with the consideration of the experts’ methodology. Here, issues to consider include the probative value of the testimony of witnesses as to how the defendant acted and whether they were displaying particular symptoms or emotions, which in turn inform expert evidence. Additionally, the internal consistency of the expert’s evidence must be scrutinised: is their testimony and report consistent and indicative of the diagnosis or assessment they are making?
These criteria seem to be a good starting point for developing a set of tools to provide to courts to assist them to understand and approach the evidence presented. It was suggested that a judge may question the legitimacy of expert evidence due to its inconsistencies with a legal understanding of fallibility and truth. Using these criteria may ensure that a non-expert, legal mind can more appropriately assess the benefits of evidence based on its objective merits rather than its consistency with the former’s reduced comprehension of the field of expertise.
Moving Through Uncharted Waters: Comparative Intuitive- Cognitive Judging at the International Criminal Courts
Gregor Maučec, University of Amsterdam and University of Liverpool
Maučec’s paper was based on the impact of judicial intuition on decision making at international criminal courts. The key research question of his paper is when, why and to what extent judges at international courts rely on their intuitions to make decisions and the impact of a “fast thinking” judge on judicial impartiality and judicial legitimacy. He addressed some of the benefits of judicial intuitions such as efficiency and expeditiousness, while identifying some drawbacks of intuitive thinking such as cognitive bias and judicial overconfidence.
I found it interesting how Maučec highlighted that the Appeals Chamber of the ICC has found that basing judicial decisions on impulse and intention, driven by emotion and sympathy rather than facts established by evidence would be in violation of the rule of law and lead to arbitrariness. Maučec concluded that despite there being intuitive elements in the decision-making processes of individual judges, that judicial intuition does not significantly impact judicial impartiality and legitimacy of judicial decisions.
“I found Maučec’s work very innovative, and I believe that it would be beneficial to extend his research to national criminal justice systems and to assess whether the mode of appointment of judges has any role to play with respect to shaping their judicial intuitions and decision- making abilities.”
Creating consistency in the Courtroom: The Role of ICC Practice Manuals
Kyra Wigard, KU Leuven
The key issue identified by Wigard in her research is that when proceedings are conducted at the ICC, different approaches are adopted by different chambers composed of different judges who have very different origins and backgrounds. As a result, there is a risk of diverging practice across Pre-Trial Chambers when considering procedural questions.
Wigard noted that as a result of divergent practices, the Chambers Practice Manuals were initially introduced in 2015 to create consistency and advance efficiency in ICC proceedings. Subsequently Chambers’ Practice Manuals have been drafted in 2017,2019, 2022 and 2023. Wigard highlighted that one of the main criticisms against the Chambers Practice Manuals is that they are not applied by all judges because of their non-binding nature. However, some judges are of the opinion that Chambers Practice Manuals should remain non-binding and that judges should only depart from the Manuals giving clear reasoning. Wigard concluded that although the Chambers Practice Manuals have been a useful guideline over the years, that they have not created any consistency because gaps still exist in in ICC proceedings and because the Chambers Practice Manuals have introduced new procedural issues.
“I found this topic to be one of the most interesting topics since Chambers Practice Manuals was not an area that I had studied or read about prior to the ICJ Conference. Wigard’s discussion made me reflect upon whether the ICC Rules of Procedure and Evidence, which has the force of law, is adequate to solve the existing procedural issues, especially when the Chambers Practice Manuals have created more procedural issues rather than bringing consistency to ICC proceedings.”