Developments in the law of procedure and evidence at the international criminal tribunal for the former yugoslavia and the international criminal court

Criminal Law Forum

Volumn 12, Issue 2, 2001, Pages 167-183

  Boas, Gideon ^a  

^a International Criminal Tribunal for the Former Yugoslavia   (Macedonia)

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EID: 27644509981     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1013030905234     Document Type: Article

References (57)

1. U.N. Doc. IT/32, as amended.
2. Gideon Boas, Creating Laws of Evidence for International Criminal Law: the ICTY and the Principle of Flexibility, 12 CRIM. L. FORUM 41 (2001).
3. The plenary of all permanent Judges of the ICTY meets several times each year and is the body which amends and creates the ICTY Rules under article 15 of the Statute. It does so by an approximately two-thirds majority (see Rule 6 of the Rules).
4. Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. A/55/273, S/2000/777 (hereinafter "Annual Report for 2000"), para. 288.
5. Ibid., para. 289.
6. See Rule 65 ter (A) of the Rules in U.N. Doc. IT/32/Rev. 20, 4 May 2001. Amendments to Rule 65 ter will be examined in detail below.
7. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-T), Decision on Prosecutor's Submissions Concerning "Zagreb Exhibits" and Presidential Transcripts, 1 December 2000, para. 36 (emphasis added). The passage cited is the oral ruling given prior to the issuing of the written reasons and is reproduced in the Trial Chamber's written decision.
8. Prosecutor v. Kovačka et al. (Case No. IT-98-30/1-AR73.5), Decision on Interlocutory Appeal by the Accused Zoran Žigić Against the Decision of Trial Chamber I, 5 December 2000.
9. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-T), Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, 29 July 1999, para. 14. The Trial Chamber referred in this respect to comments by the Appeals Chamber in Prosecutor v. Aleksovski (Case No. IT-95-95-14/1-AR73), Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 February 1999.
10. Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, U.N. Doc. A/54/634 (1999) (hereinafter "Experts Report").
11. For a detailed analysis of the Experts Report and the response of the Judges of the ICTY, see Daryl A. Mundis, Improving the Operation and Functioning of the International Criminal Tribunals, 94 AM. J. INT'L. L. 759 (2000).
12. Annual Report for 2000, supra note 4, para. 293.
13. Prosecutor v. Simić et al. (Case No. IT-95-9-PT), Decision on Simo Zarić's Application for Provisional Release, 4 April 2000, pp. 7-8.
14. Experts Report, supra note 10, para. 89.
15. U.N. Doc. S/RES/1329 (2000). As a consequence of the statutory amendments providing for ad litem judges, over twenty amendments were made to the Rules of the ICTY at an extraordinary meeting of the plenary held in April 2001.
16. See article 14 quater (2)(b)(iv).
17. Article 12(2) of the amended Statute refers to "sections", which are trial benches formed from the chamber to which the permanent and ad litem judges belong for the purpose of hearing a particular trial.
18. For a detailed analysis of these amendments, see G. Boas, supra note 2.
19. Rule 65 ter (A): "The Presiding Judge of the Trial Chamber shall, no later than seven days after the initial appearance of the accused, designate from among its permanent members a Judge responsible for the pre-trial proceedings" (hereinafter "pre-trial Judge").
20. Rule 65 ter (D): "(ii) The pre-trial Judge shall establish a work plan indicating, in general terms, the obligations that the parties are required to meet pursuant to this Rule and the dates by which these obligations must be fulfilled, (iii) Acting under the supervision of the pre-trial Judge, the Senior Legal Officer shall oversee the implementation of the work plan and shall keep the pre-trial Judge informed of the progress of the discussions between and with the parties and, in particular, of any potential difficulty. He or she shall present the pre-trial Judge with reports as appropriate and shall communicate to the parties, without delay, any observations and decisions made by the pre-trial Judge."
21. Rule 65 ter(E)(i): "Once disclosure pursuant to Rules 66 and 68 is completed and any existing preliminary motions filed within the time-limit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, upon the report of the Senior Legal Officer, and within a time-limit set by the pre-trial Judge and not less than six weeks before the Pre-Trial Conference required by Rule 73 bis, to file the following: (i) the final version of the Prosecutor's pre-trial brief including, for each count, a summary of the evidence which the Prosecutor intends to bring regarding the commission of the alleged crime and the form of responsibility incurred by the accused; this brief shall include any admissions by the parties and a statement of matters which are not in dispute; as well as a statement of contested matters of fact and law."
22. Rule 65 ter (E)(i)(c).
23. Rule 73 bis (C).
24. Rule 73 bis (E).
25. A.T.H. Smith in CRIMINAL PROCEDURE SYSTEMS IN THE EUROPEAN COMMUNITY 85 (Christine van den Wyngaert, ed., 1993).
26. See discussion of case management exercised by Trial Chambers of the ICTY in G. Boas, supra note 2.
27. See, for example, Rule 92 bis, which provides for the admission of evidence by way of written statement in place of a witness's live testimony as well as the possibility of admitting transcripts of evidence given in other proceedings before the ICTY.
28. See supra note 2.
29. Rule 92 bis (E).
30. Prosecutor v. Plavšić and Krajišnik (Case No. IT-00-39 and 40-PT), Application to the Registrar for Presiding Officers Pursuant to Rule 92 bis, 1 May 2001. Interestingly, Krajišnik's defence has reserved its right to object to the statements pursuant to Rule 92 bis (E) upon being provided with further details.
31. Prosecutors. Sikirica et al. (Case No. IT-95-8-T), Decision on Prosecution's Application to Admit Transcripts Under Rule 92 bis, 23 May 2001.
32. Ibid., paras. 3 and 4. At the time of completing this article the Prosecution had filed a motion seeking the admission of ten transcripts pursuant to Rule 92 bis (D), citing the Sikirica decision, Prosecutor v. Simić (Case No. IT-95-9-PT), Prosecutor's Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis, 22 June 2001.
33. Ibid., para. 11.
34. Ibid., para. 16.
35. Ibid., para. 21.
36. Ibid., para. 25.
37. Ibid., para. 35.
38. Prosecutor v. Aleksovski (Case No. IT-95-95-14/1-AR73), Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 February 1999.
39. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-T), Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, 29 July 1999, para.
40. The Trial Chamber stated that witnesses had been sufficiently cross-examined in the prior case. For a discussion, see G. Boas, supra note 2. Later in the same case, the Trial Chamber admitted a large number of transcripts.
41. See, for example, Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-AR73.6), Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.
42. Trial Chamber III also ruled on the "Prosecutor's Motion for the Admission of Transcripts in Eieu of Viva Voce Testimony pursuant to rule 92 bis", in Prosecutors. Simić (Case No. IT-95-9-PT), 22 June 2001.
43. The Defence objected to the admission of transcripts in that case. At the hearing, the Prosecution withdrew its application in respect of transcripts or objection to cross-examination of witnesses whose transcripts it had sought to have admitted, except for two testimonies by Dr. Gow for whom the Prosecution objected to him being called for cross-examination. In an oral ruling, the Trial Chamber admitted the transcripts of Dr. Gow's testimonies and exhibits, applying its own test as set out in Sikirica: see Motion Hearing, 25 July 2001, pp. 900-901.
44. It is noted that the Registrar has issued a "Practice Direction on Procedure for the Implementation of Rule 92 bis (B) of the Rules of Procedure and Evidence (the Presiding Officer)", IT/192, 20 July 2001, in which he sets out the procedure to be followed in taking statements under this Rule.
45. Prosecutor v. Kordić and Čerkez, supra note 38, para. 27.
46. This may be interchanged with written statement. Rule 92 bis (E) concerns whether cross-examination should be allowed with respect to both transcripts and written statements in lieu of live testimony.
47. U.N. Doc. A/CONF. 183/9, PCNICC/199/INF/3.
48. "Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized draft text of the Rules of Procedure and Evidence", U.N. Doc. PCNICC/2000/INF/3/Add. 3.
49. Ibid., Rule 63(2).
50. Rome Statute of the International Criminal Court, supra note 43, art. 69(2).
51. See G. Boas, supra note 2, for a detailed discussion of Rule 94 ter and Rule 92 bis.
52. Rule 89(F) reads: "A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form." This replaced Rule 90(A), which expressed a preference for oral testimony and was deleted at the twenty-third session of the plenary in December 2000.
53. Rome Statute of the International Criminal Court, supra note 43, art. 39(1).
54. Ibid., art. 15(4).
55. Ibid., arts. 57 and 58.
56. Ibid.
57. See discussion above and G. Boas, supra note 2.