Navanetham Pillay: Standing Justice on its Head


The UN Human Rights Commissioner Navanetham Pillay is due to arrive in Sri Lanka this week at the invitation of the Sri Lankan government.  Many people in Sri Lanka do not know much about Pillay except that she as the UN Human Rights Commissioner has been at the forefront of the campaign to initiate an international war crimes inquiry against Sri Lanka. It just so happened that when Sri Lanka crushed Tamil terrorism, the UN Human Rights Commissioner herself happened to be a South African Tamil. Whether her ethnicity has coloured her perception of Sri Lanka is a moot question – many people would suspect that it has. However, what is of much greater concern is her attitude towards the due process of the law. If her attitude towards the law was above reproach, then personal prejudices may have been tempered by professionalism.

 One would think that being a South African who began her career under the Apartheid regime, Pillay would share the broadly humanistic and reconciliatory attitude displayed by Nelson Mandela who dismantled that system of government. But that’s not what we see in her. Pillay became the UN Human Rights Commissioner after serving in the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). An examination of her career shows her attitude towards the law.

 International criminal trials and procedures for international criminal courts is still new to the world. When the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were set up in 1991 and 1994 respectively, they were essentially breaking new ground. The only precedent at that time for international criminal tribunals was the Nuremburg and Tokyo war crimes trials that were set up soon after World War 11 to punish the vanquished. Between Nuremburg and the Yugoslav Tribunal, there were no international criminal trials. As such, people like Navi Pillay, who was one of the first judges appointed to the Rwandan tribunal could have contributed much to the development of international criminal law. As Theodor Meron, the former president of the International Criminal Court for Yugoslavia writing to the American Journal of International Law pointed out, the task of the Nuremburg trials was easy because there was such a wealth of documentation which provided much of the evidence necessary to establish guilt.

 However, that was not the case in Yugoslavia and Rwanda where gathering evidence and the ‘police work’ in relation to the prosecutions was much more problematic. As such, people like Pillay could have been trail blazers in international criminal law by establishing fair and acceptable procedures relating to the presentation of evidence at international war crimes trails which would have given such tribunals credibility in the eyes of the world. What they have done however is exactly the opposite. Legal experts have been questioning the procedures in these international war crimes tribunals in relation to matters that would never be brought into question in relation to the national courts in the West or indeed anywhere in the democratic world.

Let’s take for example, just one completed case in the International Criminal Tribunal for Rwanda on which Pillay sat as a judge - The Prosecutor versus Jean Paul Akayesu. This was the trial of a village headman type official who had eight local policemen under his command for various crimes including failure to maintain law and order, rape, torture and murder.


International Kangaroo court

 The accused in this trial denied the charges and said in his defence that he was vastly outnumbered by the law breakers and that he himself had not committed any wrongdoing. What is important in this trial is not the charges against the accused or what he said in his defence, but the rules of evidence applied to his case.

 The tribunal decided in the Akayesu case that under the Statute of the ICTR, they are not bound to apply any particular legal system and is not bound by any national rules of evidence. They have drawn attention to Rule 89 of the Rules of Procedure and Evidence applicable to the ICTR and claim that they have adopted the rules of evidence which in its view best favour a fair determination of the matter before it and is consistent with the spirit and general principles of law. Thus ipso facto, the rules of evidence that would apply in criminal trials in any nation - the USA, Europe or even Sri Lanka, will not apply in the case of these international criminal trials and the judges in the Rwandan tribunal would be guided by rules of evidence of their own making.

 There isn’t much of a difference between the rules of evidence that the legal systems in the democratic world adhere to. Thus there would hardly be any difference in the rules of evidence applicable in the USA, Europe, India and Sri Lanka even though these countries are at varying stages of socio-economic development. Countries like India, Sri Lanka and many other underdeveloped countries have unhesitatingly borrowed rules of procedure and legal principles from the legal systems of the developed West. These rules of evidence have evolved in the West over a long period of time to ensure fair a trial and it is customary for even sovereign nations to draw on the experience of other nations to follow best practice to ensure fair play. Article 100 in Sri Lanka’s own Evidence Ordinance says that "Whenever in a judicial proceeding a question of evidence arises not provided for by this Ordinance or by any other law in force in Ceylon, such question shall be determined in accordance with the English Law of Evidence for the time being."

 Though Sri Lanka gained independence from Britain over six decades ago, we still draw inspiration from the legal system of the colonial master and are always willing to use British law to fill the gaps in our own. If Sri Lanka can draw on British law even after gaining independence of that country, there is no reason as to why the ICTR which is an international UN body cannot apply the rules of evidence that have evolved over long period of time in the West. One cannot have one set of rules for criminal trials at the national level and another set of rules for criminal trials at the international level. The body of rules and procedures that have evolved over decades sometimes centuries at the national level should guide criminal trials at the international level as well. But this is not what happens in the ICTR. In fact the ICTR Statute does not have any rules of evidence at all. Article 14 of the ICTR Statute simply states that the rules of procedure and evidence applicable to the International Criminal Tribunal for the former Yugoslavia set up previously will apply with the necessary changes to the ICRT as well.

 All that Rule 89 of the ICTY rules of procedure says is that the tribunal shall not be bound by national rules of evidence and they shall apply rules of evidence which will best favour a fair determination of the matter before it. A tribunal may admit any relevant evidence which it deems to have probative value and they may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. The open ended nature of the rules of evidence in these international criminal trails has led to many questioning the fairness of the trials conducted by these tribunals. Just imagine what would happen in Sri Lanka if judges were not bound by statutorily established rules of evidence and they were given the freedom to admit or reject any evidence that would appear to them to have, or not have, probative value! The very definition of a Kangaroo court is a "mock court where the principles of law and justice are disregarded or perverted" and that is what ICTR is.

 One would think that an ‘international’ trial would be much fairer than any trial conducted at the national level because an international court would draw on the experience of the entire world to ensure best practice. But what has happened is the exact opposite. An accused before a criminal court in any democratic nation can expect much greater fairness than an accused in an international criminal court. Judges at the national level are bound by rules of procedure and case law that has evolved over a long period of time and they are not allowed to make their own rules as they go along as the ICTY and ICTR has been doing. Judges sitting on the ICTY and ICTR had much to do with turning these institutions into Kangaroo courts and Navenethem Pillay was one of them.

 While it’s true that the ICTY/ICTR rules of procedure says that the tribunal is not bound by national laws, that did not preclude them from pegging the rules of procedure and evidence applicable in these tribunals to the rules currently in place in courts systems in democratic nations. But they chose to do otherwise and what has resulted from that is an appalling perversion of justice. Take for example some of the rules of procedure that were adopted in the Akayesu case mentioned earlier. Pages 39 to 46 of the 191 page judgement delivered in this case deals with the rules of evidence applied to determining the guilt of the accused. These can be summarised as follows:


Witness statements

 In the Akayesu case, the Rwandan tribunal noted that during trial, only one testimony was presented in support of certain facts alleged in the Indictment; hence the question arose as to the legal principle unus testis, nullus testis (one witness is no witness) whereby corroboration of evidence is required if it is to be admitted. The tribunal cleared this hurdle by simply stating that according to Rule 89 of the rules of procedure applicable to them, they are not bound by any national rules of evidence and that they have the power to admit any relevant evidence which has probative value. The ICTR in fact even quoted the previously set up Yugoslavian tribunal to the effect that in cases of testimony by victims of sexual assault, no corroboration shall be required. So they argued that if in cases involving sexual assault no corroboration of testimony is needed, then no corroboration should be necessary with regard to testimony in other criminal cases as well! So Navanethem Pillay and her colleagues on the bench of the Akayesu trial decided that the tribunal can rule on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible.

 Thus, the tribunal not only decides what evidence is admissible and what is not admissible entirely in accordance with its own opinions, they can also condemn an accused on the basis of a single testimony that needs no corroboration. If we take the famous ‘white flag’ case in Sri Lanka for example, there was only one real witness against General Sarath Fonseka – the then Sunday Leader Editor Frederica Jansz. There was no recording of the interview at the centre of the storm and the court had only Frederica’s notebook as corroboration. There were of course other circumstantial matters such as the fact that Fonseka never wrote to the Sunday Leader denying the story – a natural reaction that should be expected if the story was untrue. However, no court in this country would ever have convicted General Fonseka on just one testimony. What fixed Fonseka was the fact that he later repeated what he had told Frederica on the public stage at various propaganda meetings and these speeches were caught by the TV cameras. But if Fonseka had gone before Navanethem Pillay, Frederica’s words alone, without even her notebook, would have got Fonseka behind bars.

 The next one is even better. According to paragraph 136 of the Akayesu judgement, the tribunal is free to assess the probative value of ALL relevant evidence. So they came to the conclusion that hearsay evidence is not inadmissible per se and the tribunal has taken such evidence into account with caution! An expert witness who appeared before the tribunal had said that most Rwandans live in an oral tradition in which facts are reported as they are perceived by the witness, often irrespective of whether the facts were personally witnessed or recounted by someone else. The Rwandan tribunal itself noted that on examination it was at times revealed that evidence which had been reported as an eyewitness account was in fact a second-hand account of what was witnessed. But Pillay and her colleagues were unfazed by this. They say blandly that the tribunal made a consistent effort to ensure that this distinction between what was seen and what was heard from someone else was drawn throughout the trial proceedings. But in any case, this would not be a problem because as far as the ICTR was concerned even hearsay evidence was admissible.


Hearsay evidence

 While it is true that the common law prohibition on the admission of hearsay evidence has undergone changes even in Britain, still, there are very strict guidelines that apply to the admission of hearsay evidence in British courts. The British Criminal Justice Act of 2003 stipulates in Article 34.2 that when any party wants to introduce hearsay evidence, they have to issue notice on the courts as well as the other parties to the litigation and (i) identify the evidence that is hearsay, (ii) set out any facts on which that party relies to make the evidence admissible, (iii) explain how that party will prove those facts if another party disputes them, and (iv) explain why the evidence is admissible. But none of these safeguards were available to the accused in the Rwandan tribunal where hearsay evidence was admitted if the panel of judges thought it was admissible. British judges do not have such arbitrary authority.

 In the well-known 1895 case Coffin et al vs. the United States, the US Supreme Court opined that to justify returning a verdict of ‘guilty,’ the evidence must be of such a character as to satisfy one’s judgment to the exclusion of every reasonable doubt. In this case, the US Supreme Court also illustrated how witness testimony should be regarded in courts as follows: "Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, ‘a passionate man,’ seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, ‘Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?’ to which Julian replied, ‘If it suffices to accuse, what will become of the innocent?" Note that in the Akayesu case it was sufficient to accuse and no corroboration was necessary.  

During the trial of Akayesu, the defendant pointed out that there were inconsistencies and contradictions between the pre-trial statements of witnesses and their evidence at trial. Pillay and her colleagues on the bench got around this problem by saying that these pre-trial statements were made to officers of the Office of the Prosecution and that the probative value attached to those statements is, in their view, considerably less than direct sworn testimony before the tribunal, the truth of which has been subjected to the test of cross-examination. Furthermore they held that the pre-trial statements were in the Kinyarwanda language and the tribunal did not have access to transcripts of the pre-trial interviews, but only translations thereof. They were therefore unable to consider the nature and form of the questions put to the witnesses (at the pre trial interviews), or the accuracy of the translation.

 The tribunal also said that in the light of the time lapse between the pre-trial statements and the presentation of evidence at trial, and the difficulties of recollecting precise details several years after the occurrence of the events, and the difficulties of translation, led them to disregard those inconsistencies. (While the tribunal was willing to concede that the pre-trial statements could be inaccurate due to difficulties in recollecting details of incidents several years after they happened, they seem to think that the statements made to the tribunal by those same witnesses long after they made the pre-trial statements were somehow miraculously exempt from the possibility of being inaccurate – and this mind you, is in a context where the uncorroborated testimony of a single witness was deemed sufficient to prove an allegation.)

 When the defendant in the Akayesu case requested the tribunal to conduct an investigation into false testimony given by witnesses, Pillay and her colleagues brushed this aside by saying that an investigation into giving false testimony can be initiated only on two grounds – when the tribunal itself is convinced that a witness has given false testimony or when a party to a trial makes a request that an investigation into false testimony be conducted. In the latter case, the onus is on the party stating that a witness has given false testimony to prove the falsehood of the witness statements. The tribunal found that for the defence to raise only doubts as to the credibility of the statements made by the witness was not sufficient to establish strong grounds for believing that the witness may have knowingly and wilfully given false testimony.

 The tribunal also observed as follows: "The majority of the witnesses who appeared before the Chamber were eyewitnesses, whose testimonies were based on events they had seen or heard in relation to the acts alleged in the Indictment. (Note the reference to ‘eyewitnesses’ who had ‘heard’ things about the matters relating to the indictment. It should be noted that Rule 602 of the Federal Rules of Evidence in the USA specifically states that "A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Thus for a witness to be able to testify, it must first be established that the person concerned had personal knowledge of the matter.)

 The Rwandan tribunal acknowledged that during the Akayesu trial, there appeared to be contradictions or inaccuracies between the testimonies of several witnesses made to the tribunal, and their earlier statements to the Prosecutor and the Defence. But they decided that this alone is not a ground for believing that the witnesses gave false testimony. The tribunal observed that an often levied criticism of testimony is its fallibility. Since testimony is based mainly on memory and sight, two human characteristics which often deceive the individual, this criticism is to be expected. Hence, testimony is rarely exact as to the events experienced. To deduce from any resultant contradictions and inaccuracies that there was false testimony, would be akin to criminalising frailties in human perceptions. Moreover, inaccuracies and contradictions between the said statements and the testimony given before the Court are also the result of the time lapse between the two. Memory over time naturally degenerates, hence it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony. Moreover, false testimony requires the necessary mens rea and not a mere wrongful statement.

 Thus while the tribunal was fully aware of the unreliability of witness accounts, they were still prepared to make a decision based only on one single uncorroborated eye witness account. When it suited the tribunal, an eye witness account was deemed to be an accurate description of what happened. At other times, eye witness accounts were deemed to be so unreliable that those witnesses cannot be held liable for giving false testimony. The tribunal also said that the impact of traumatic experiences of witnesses in recounting of this traumatic experience is likely to evoke memories of the fear and the pain once inflicted on the witness and thereby affect his or her ability to recount the sequence of events in a judicial context.

 Unsurprisingly, the wretched Jean Paul Akayesu got not one but several life sentences which for practical reasons would run concurrently. Pillay’s conduct after assuming the position of UN Human Rights Commissioner indicates quite clearly, that she has brought the ICTR attitude with her into the UNHRC as well. The government has in essence invited the former judge of a Kangaroo Court to Sri Lanka. The biggest irony is that she will be welcomed to Sri Lanka by a former Professor of Law! The foregoing description of the Akayesu trail can’t possibly have any resemblance to what Prof. G.L.Peiris once taught his students.

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