Evidence Illegally Obtained by Private Investigators and Its Use Before International Criminal Tribunals

Abstract

This article examines the rationales to exclude evidence before International Criminal Tribunals that has been illegally obtained by private investigators. The appeal of private investigations has now reached the level of international criminal justice, with the establishment of the Commission for International Justice and Accountability. Investigative staff at the International Criminal Court and other International Criminal Tribunals are dependent on the work undertaken in the field by human rights monitors as fact finders, employed by IGOs, NGOs, and, in some cases, by governmental agencies. Considering the importance of private investigators for the administration of those Tribunals, potential dangers of such a cooperation easily take a backseat in a car that is driven by the anti-impunity agenda. Scenarios of investigators offering money to witnesses in return for information about a suspect and his or her criminal activities are a reality. While case law has addressed the topic of illegally obtained evidence by national authorities, the fate of evidence collected by private individuals in breach of human rights has rather been neglected. This article provides a conceptual basis for the exclusion or admission of this evidence.