국제형사재판에서 전문증거와 ‘이전에 기록된 증언’의 증거능력

In 2014, the Report of the UN Commission of Inquiry on Human Rights in North Korea found that systematic, widespread and gross human rights violations had been and was being committed by North Korea. In many instances, the violations found entailed crimes against humanity based on State policies. The main perpetrators are officials of North Korean Authorities. For the purpose of punishing the North Korean perpetrators for the crimes against humanity in the international courts or tribunals, the UN and the government of Republic of Korea has collected and maintained hearsay evidences and the prior recorded testimonies from the many North Korean defectors since then. In South Korea, these hearsay evidences and prior recorded statements or transcripts has been kept by the Center for North Korean Human Rights Records in the Ministry of Unification and the North Korea Human Rights Archive in the Ministry of Justice. The problem is whether the hearsay evidences and the prior recorded testimonies can get admissibility as evidence in those courts or tribunals. As the Rome Statute of the ICC stipulates in Article 69(3) that the parties may submit evidence relevant to the case … The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth, the ICC admits and gives weight to hearsay evidence. As a general rule, the international criminal courts and tribunals including the ICC has today clearly a wide discretion when they come to the admittance of hearsay evidence. The ICC’s legal text mentions the primacy of oral witness testimony in Article 69(2). The ICC can, however, admit prior recorded testimony as evidence under certain conditions. The ICC’s Rule 68 gives the Court greater discretion in admitting the prior recorded testimony. The provisions of Rule 68 and the analogous rules at the ICTY, ICTR and SCSL seek to protect to the right of the accused and fair trial in a number of ways. For examples, they limit the subject of the prior recorded testimony to evidence that goes to prove matters other than the acts and conduct of the accused, such as evidence on the background or impact of crimes. They also require that, as for the prior recorded testimony to be admitted, it must be accompanied by a declaration by the testifying person that the contents of the prior recorded testimony are true and correct to the best of that person’s knowledge and belief and accompanying declarations must be witnessed by a person authorized to witness such a declaration by the relevant Chamber or in accordance with the law and procedure of a State. The other requirements are that the witness must be available for cross-examination at the time the statement was given. In accepting the prior recorded testimony as evidence, international criminal courts and tribunals are balancing a number of considerations mentioned above for a fair trial including the accused’s right to confront witness. The ICC’s Rule 68(2)(c) make clear that if a witness has died, can no longer with reasonable diligence be traced or is otherwise unavailable, a written statement or transcript of his or her testimony may also be admissible. Therefore, it will be very important to collect, categorize, analyze and maintain the hearsay evidence and the prior recorded testimonies concerning the crimes against humanity committed in North Korea by the officials of North Korean authorities. And it will be more crucial to make all the hearsay evidences and the prior recorded testimonies be satisfied with all requirements as described in the ICC’s Rule 68 needed to get admissibility as evidence.