parties on the matter, are important factors for consideration.
170
As regards the form of documentary evidence, the ICTY considers elements such
as: whether it is an original copy; whether it is registered or enrolled with an
institutional authority; whether it contains a signature; whether it is sealed, certified
or stamped; whether it is officially authorised by an authority or organisation; and
whether it is duly executed.
171
As regards the content of a document, the Chamber
will consider all circumstances of the case, ‘including its relation to oral testimony
given before the Chamber pertaining to the content of the document’.
172
These factors
are not conclusive. In addition, it should be noted that ‘[a]s a general rule, it is
insufficient to rely on any one factor alone as proof or disproof of the authenticity of
the document. Authenticity must be established through reference to all relevant
factors’.
173
In relation to the source of a document, it has been made clear that this may have
an impact on the reliability or credibility of the document in question.
174
Although
the fact that the source is the party which itself adduces the document does not
necessarily render the document unreliable,
175
since evidence which aims to support
a defence of alibi is normally held to be more reliable when the source is not the
accused himself.
176
11.10.4 Weight of hearsay evidence
As already explained, the ICTY and ICTR rejected the common law approach in
relation to the admission of hearsay evidence. As the ICTR stated in the
Akayesu
case, ‘evidence which appears to be “second-hand” is not, in and of itself,
inadmissible; rather it is assessed, like all other evidence, on the basis of its credibility
and relevance.’
177
The Chambers nevertheless acknowledge that ‘the weight to be
afforded to that material will usually be less than that given to the testimony of a
witness who has given it under oath and who has been cross-examined, although
168 It should be noted that by virtue of ICTY Rules, r 89(E) and ICTR Rules, r 89(D), a Chamber may
request verification of the authenticity of evidence obtained out of court. An accused can, however,
not be forced to produce any sample as that would violate the privilege against self-incrimination.
Musema
judgment (27 January 2000), paras 64 and 68;
Delalic,
Decision on Admission of Evidence (21
January 1998).
169
Brdanin and Talic,
Admission of Evidence Order (15 February 2002), para 20.
170
Musema
judgment (27 January 2000), para 66.
171
Ibid,
para 67.
172
Ibid,
para 70.
173
Ibid,
para 72.
174
Ibid,
para 63.
175
Ibid,
para 61.
176
Ibid,
para 63. On appeal Musema complained about this reasoning. It was held on his behalf that ‘since
all persons are entitled to equal treatment before the Tribunal, documents produced by him cannot be
accorded a lesser status than documents produced by others’ (
Musema,
Appeals Judgment (16
November 2001), para 40). The Trial Chamber disagreed, but stated that ‘it is correct to state that the
sole fact that evidence is proffered by the accused is no reason to find it,
ipso facto,
less reliable’, para 50.
177
Akayesu
judgment (2 September 1998), para 103.
International Criminal Law
318
even this will depend upon the infinitely variable circumstances which surround
hearsay material’.
178
Double or triple hearsay will, on this basis, presumably be denied
significant weight.
179
A danger exists that hearsay evidence is considered to have sufficient weight on
the mere basis that it passed the test of admission. In general though, judges tend to
be more cautious in relation to hearsay evidence than direct evidence.
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