Rough edges in the alignment of legal systems in the proceedings at the ICTY

Journal of International Criminal Justice

Volumn 3, Issue 5, 2005, Pages 1037-1058

  Robinson, Patrick L ^a  

^a NONE

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EID: 31044442007     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi074     Document Type: Article

References (103)

1. Statute of the International Criminal Tribunal for the Former Yugoslavia, 32 International Legal Materials 1159 (1993), amended and also available in most recently amended form online at: http://www.un.org/icty/basic/statut/stat11-2004.htm ('ICTYSt').
2. Rules of Procedure and Evidence of the International Tribunal ('ICTY RPE'), available online at: http://www.un.org/icty/legaldoc/procedureindex.htm (visited 15 May 2005).
3. The first set of international war crimes trials took place after the Second World War at Nuremberg and Tokyo.
4. Since 1993, the Rules have been amended 36 times pursuant to Art. 15 ICTYSt., which authorizes the Judges to adopt rules of procedure and evidence, and Rule 6 of the Rules, which authorizes amendment to the Rules based on proposals made by a Judge, the Prosecutor, or the Registrar. This spate of amendments, as many as four in one year, indicates the frequency that the Tribunal is called upon to devise measures to resolve a particular issue.
5. Article 1 provides: 'The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.'
6. Article 21 provides: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
7. Article 20(1) provides: 'The Trial Chambers shall ensure that a trial is fair and expeditious and that the proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.' Article 21(2) provides: 'In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.' The over-arching requirement of fairness is also reflected in the residual character of Rule 89(B), which provides: 'In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.'
8. Article 16 ICTYSt.
9. Rule 85 ICTY RPE.
10. Rule 89(c) ICTY RPE. Similarly, procedural regimes at the post-Second World War tribunals, as well as those of other contemporary international criminal tribunals, are characterized by an independent prosecutor and a generally adversarial system for the presentation of evidence, but a more relaxed set of rules for the admissibility of evidence based on the inquisitorial model. See Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, 8 August 1945, 82 UNTS 284, Arts 20 and 21;
11. Charter of the International Military Tribunal for the Far East, 19 January 1946, TIAS No. 1589, 4 Bevans 20 (as amended 26 April 1946, 4 Bevans 27), Art. 13; Arts 15 and 17 ICTRSt. (relevant provisions of the ICTR Statute); Rules 85, 89 ICTR RPE (relevant provisions of the ICTR Rules); Arts 53, 54 and 69 ICCSt (relevant provisions of the ICC Statute); Rules 63 and 64 ICC RPE (relevant provisions of the ICC Rules); Statute of the Special Court for Sierra Leone, 2178 UNTS 138, at 145, Art. 14 (providing that the ICTR's Rules apply mutatis mutandis).
12. See also R. May and M. Wierda, 'Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha, 37 Columbia Journal of Transnational Law (1999) 737-740.
13. For discussions of the two systems, see M. Damaška, 'The Uncertain Fate of Evidentiary Transplants: Anglo-American and Contemporary Experiments', 45 American Journal of Comparative Law (1997) 839-852 ('Evidentiary Transplants');
14. idem, 'Atomistic and Holistic Evaluation of Evidence: A Comparative View', in D.S. Clark (ed.), Comparative and Private International Law: Essays in Honour of John Henry Merryman on His Seventieth Birthday (Berlin: Duncker and Humblot, 1990) 91-104;
15. F. Tulkens, 'Main Comparable Features of the Different European Criminal Justice Systems', in M. Delmas-Marty (ed.), The Criminal Process and Human Rights: Toward a European Consciousness (Dordrecht: Martinus Nijhoff 1995) 5-13;
16. W. Pizzi, 'The American "Adversary System"?', 100 West Virginia Law Review (1998) 847-852.
17. S. Doran et al. 'Rethinking Adversariness in Nonjury Criminal Trials', 23 American Journal of Criminal Law (1995) 1-59, at 7, note 23 (summarizing Professor Damaška's views).
18. Tulkens, supra note 11, at 9.
19. For a discussion of the influence of the two legal systems on the Tribunal, see May and Wierda, supra note 10, at 727. References to one or the other system do not necessarily mean that national jurisdictions that are generally seen as belonging to the same system have the same rules as to substantive law, procedure or evidence.
20. The phrase used by the Appeals Chamber in Decision on Interlocutory Appeal Concerning Rule 92bis (C), Galić (IT 98-29-AR73.2), Appeals Chamber, 7 June 2002 ('Galić Decision'), §10(a).
21. Ibid., § 9-12.
22. In this decision, the Appeals Chamber clarified that Rule 92bis (A) distinguishes between (a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, and (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others; it is only a written statement which goes to proof of the latter acts and conduct which Rule 92bis (A) excludes; ibid., §9.
23. See, e.g. Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92bis (D) - Foča Transcripts, Milošević (IT-02-54-T), Trial Chamber, 30 June 2003 ('Foča Decision'), § 28 and 35.
24. In this decision, the Trial Chamber considered that the live issue warranting cross-examination of the witnesses was 'the participation of the JNA (or Serb paramilitaries) in the takeover of Foča ... i.e. the role of the JNA and Serb paramilitaries in the takeover of municipalities and villages in Croatia and Bosnia and Herzegovina'; ibid., §28.
25. At the same time that Rule 92bis was adopted, Rule 90 was amended by deleting §(A), which provided, 'Subject to Rules 71 and 71bis, witnesses shall, in principle, be heard directly by the Chambers'; and Rule 89 was amended by adding §(F), which provides, 'A Chamber may receive evidence orally or, where the interests of justice allow, in written form'. See Galić Decision, supra note 14, §12 ('[T]he intention of Rule 92bis ... (together with concurrent amendments to Rules 89 and 90) was to qualify the previous preference in the Rules for "live, in court" testimony, and to permit evidence to be given in written form where the interests of justice allow provided that such evidence is probative and reliable').
26. In 2003, Trial Chamber III refused a request from the Prosecutor to admit written statements under Rule 89(F), holding that such statements were only admissible under Rule 92bis, which contained safeguards not found in Rule 89(F). However, the Appeals Chamber held that such statements were admissible under Rule 89(F) when the witness is (a) present in court, (b) available for cross-examination and any questioning by the Judges, and (c) attests that the statement accurately reflects his or her declaration. It was also held that it was for the Trial Chamber to determine whether it was in the interests of justice to admit a particular statement. Decision on Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), Trial Chamber, 30 September 2003, §20.
27. Damaška, 'Evidentiary Transplants', supra note 11, at 850.
28. See, e.g. Barbera, Messegue and Jabordo v. Spain, ECHR (1988) Series A, No. 146;
29. Kostovski v. The Netherlands, ECHR (1989) Series A, No. 166, §41.
30. Kostovski, ibid.;
31. Unterpertinger v. Austria, ECHR (1986) Series A, No. 110, §33;
32. Ludi v. Switzerland, ECHR (1992) Series A, No. 228, §47;
33. Saidi v. France, ECHR (1993) Series A, No. 261-C, §44.
34. For example, in Unterpertinger, a violation was found in which a conviction was based mainly on the complainant's written statements; see ibid., §33.
35. See below, Part V for a more detailed discussion of Rule 98bis.
36. Decision on Prosecutor's Appeal on Admissibility of Evidence, Aleksovski (IT-95-14/1-AR 73), Appeals Chamber, 16 February 1999, §25.
37. See Foča Decision, supra note 16,
38. Dissenting Opinion of Judge Patrick Robinson ('Foča Dissenting Opinion'), at 20, § 4-9.
39. See Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92bis (D), Milošević (IT-02-54-T), 10 January 2003, §19.
40. 'There is a specialty and uniqueness about the case for one accused that makes it difficult to conclude that there are common interests between an accused in one case and another accused in another case, or at any rate to conclude that there is an identity of interests such that cross-examination on behalf of an accused is adequate, so that cross-examination on behalf of another accused in a subsequent case may be dispensed with'; Foča Dissenting Opinion, supra note 24, §32.
41. The suggestion regarding an investigative judge is moot at this stage in the Tribunal - where the last indictments were presented for review at the end of 2004, as a part of the completion strategy implemented pursuant to recent Security Council resolutions - but may be useful for the designers of future international tribunals or courts.
42. See Decision on Defence Motions for Judgment of Acquittal, Kordić and Čerkez (IT-95-14/2-T), Trial Chamber, 6 April 2000 ('Kordić Acquittal Decision'), §24, in which the Trial Chamber observed that civil-law jurisdictions do not have such a procedure, except for Spain, which has legislation providing for the dismissal of the jury after the prosecution's case, where there is no evidence that could support a conviction of the accused.
43. See, e.g. ICC Rules, supra note 10, Rule 140(1) ('If the Presiding Judge does not give directions under article 64, §8, [which authorizes the Presiding Judge to "give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner"] the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions.').
44. Judgment, Jelisić (IT-95-10-A), Appeals Chamber, 5 July 2001, § 35-38.
45. R v. Galbraith (1981), 73 Criminal Appeal Reports 124, 125.
46. See Separate Opinion of Judge Patrick Robinson in Decision on Motion for Judgment of Acquittal, Milošević (IT-02-54-T), Trial Chamber, 16 June 2004.
47. Kordić Acquittal Decision, supra note 28, §9.
48. On the question of the transplant of domestic procedures to the Tribunal, Judge Cassese said: 'This reference to national law might cast some light on the possible implications and ramifications of the notion, but ultimately that notion must be autonomously construed on the basis of the international provisions of the Statute'; Judgment, Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1997, Separate and Dissenting Opinion of Judge Cassese, §2.
49. See also ibid., §1;
50. P. Robinson, 'Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia', 11 European Journal International Law (2000) 569-589, at 579:
51. Whether the Tribunal has an inquisitorial or accusatorial system is, in the end, an unproductive and unnecessary debate, since in interpreting a provision that reflects a feature of a particular system, it would be incorrect to import that feature wholesale into the Tribunal without first testing whether this would promote the object and purpose of a fair and expeditious trial in the international setting of the Tribunal. As a result, a feature taken from the common-law system in the presentation of evidence does not, for the purposes of application in the Tribunal, necessarily retain all of its constituent parts. In the passage from its domestic berth to the international level, it may, in response to the contextual and teleological requirements of the Tribunal, have undergone some modifications. Following this transition, that feature from the common-law system is no longer a common-law feature. It has become a feature peculiar to the Tribunal and is in fact sui generis.
52. Out of the hundreds of witnesses that have been called since the first trial at the ICTY began in 1996, Trial Chambers have exercised the Rule 98 power in only seven cases, calling 22 witnesses. Apart from the two instances in the Milošević case (see infra note 36), Trial Chamber I called eight witnesses under Rule 98 in the Blaškić case, and three witnesses in the sentencing phase of the Nikolić case; Trial Chamber II called six witnesses and ordered the prosecution to appoint two forensic experts in the Stakić case, and ordered the production of additional documentary evidence in the Deronjić case; Trial Chamber III called two witnesses in the Kordić and Čerkez case; and the Kupreškić Trial Chamber called one witness. See Judgment, Blaškić (IT-95-14-T), Trial Chamber, 3 March 2000, § 56-57;
53. Sentencing Judgment, Nikolić (IT-02-60/1-S), Trial Chamber, 2 December 2003, §25;
54. Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, § 13-14 and 16;
55. Order on Production of Additional Evidence Pursuant to Rule 98, Deronjić (IT-02-61-S), Trial Chamber, 5 December 2003;
56. Judgment, Kordić and Čerkez (IT-95-14/2-T), Trial Chamber, 26 February 2001, § 21-22;
57. Judgment, Kupreškić et al. (IT-95-16-T), 14 January 2000, §29.
58. Order Concerning the Testimony of Lord Owen, Milošević (IT-02-54-T), Trial Chamber, 17 October 2003. On one other occasion, the Milošević Chamber called another Court witness, Helena Ranta. See Milošević (IT-02-54-T), Trial Chamber, Order on Prosecution's Motion to Admit Documents Relating to Helena Ranta, 13 November 2002;
59. and Order to Dr Helena Ranta to Provide Written Statement Prior to Testifying, 27 January 2003.
60. In the US federal courts, however, the traditional common-law rule and its exception have been replaced by an enacted rule of evidence ostensibly permitting any party to attack the credibility of any witness. Fed R Evid 607 ('The credibility of a witness may be attacked by any party, including the party calling the witness.'). A leading treatise has noted, however, that the unqualified language of the rule is misleading because the rule remains subject to other provisions limiting a party's ability to attack witnesses' credibility; moreover, some courts applying this rule have imposed requirements that the witness' testimony surprise the party calling him, or damage that party's case, before that party may impeach the witness' credibility, suggesting that the common-law roots of the procedures for the treatment of witnesses remain strong; see C.A. Wright and V.J. Gould, 27 Federal Practice and Procedure-Evidence, §6093.
61. See the UK's 1865 Criminal Procedure Act, s. 3;
62. but see the Criminal Justice Act 2003, s. 119, which marks a departure from the traditional common-law rule regarding the reatment of inconsistent statements by hostile witnesses, by providing that a witness's prior inconsistent statement 'is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible'.
63. For a discussion of the question, see M. Newark, 'The Hostile Witness and the Adversarial System', Criminal Law Review (1986) 441-454, at 442 and 454.
64. Oral Ruling, Blagojević and Jokić (IT-02-60-T), Trial Chamber I, 20 October 2003, at T. 3099-3103.
65. Prosecution's Motion Pursuant to Rules 54 and 73 concerning the Examination of Witnesses in Chief, Milošević (IT-02-54-T), 22 August 2003.
66. Transcript of Status Conference, Milošević (IT-02-54-T), Trial Chamber III, 2 September 2003, at T. 25972.
67. Oral Ruling, Limaj, Bala and Musliu (IT-03-66-T), Trial Chamber II, 18 January 2005, at T. 2142-2145 (denying application);
68. Oral Ruling, 1 February 2005, at T. 2735-2742 (granting application);
69. Oral Ruling, 9 March 2005, at T. 4002-4010 (granting application).
70. Oral Ruling, Limaj, Bala and Musliu (IT-03-66-T), Trial Chamber II, 18 January 2005, at T. 2143.
71. Ibid., at T. 2144. There are also other instances of Trial Chambers granting such applications or announcing a general rule that parties may treat witnesses they call as hostile with leave of the Chamber.
72. Oral Ruling, Brdanin and Talić (IT-99-36-T), Trial Chamber II, 23 January 2002, at T. 674-677;
73. Oral Ruling, Hadžihasanović and Kubura (IT-01-47-T), Trial Chamber II, 21 April 2004, at T. 5799-5801;
74. see also Oral Ruling, Krajišnik (IT-00-39-T), Trial Chamber I, 23 November 2004, at T. 8558-8559.
75. See Decision on the Prosecution's Motion to Admit Prior Statements as Substantive Evidence, Limaj, Bala and Musliu (IT-03-66-T), Trial Chamber II, 25 April 2005 ('Limaj et al. Decision').
76. Ibid., §9.
77. Ibid., §5.
78. Ibid., §13.
79. Ibid., § 18-19 and 21.
80. Ibid., § 25 and 34.
81. Ibid., §33.
82. In an interlocutory appeal in the Kordić and Čerkez case interpreting another provision of the Rules, the Appeals Chamber referred to Rule 89(B) and insisted on the importance of the general principle that 'interpretation of the Rules of Evidence should "best favour a fair determination of the matter" and "be consonant with the spirit of the Statute and the general principles of law"'. Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Kordić and Čerkez (IT-95-14/2-AR73.6), Appeals Chamber, 18 September 2000, §22 and note 38.
83. Ibid., §28.
84. In the Tribunal's legal system, decisions of the Appeals Chamber are binding on Trial Chambers, but decisions of one Trial Chamber are not binding on another Trial Chamber, although, of course, they may be followed if found persuasive; see Judgment, Aleksovski (IT-95-14/1-A), Appeals Chamber, 24 March 2000, § 112-115.
85. Limaj et al. Decision, supra note 46, §19.
86. A.G. Walker and N.M.L Walker, Law of Evidence in Scotland (Glasgow: Hodge, 1980) 364-365.
87. Limaj et al. Decision, supra note 46, §8 ('While the procedure and evidentiary system of this Tribunal represents an attempt to blend elements of both civil and adversarial systems, it remains primarily adversarial.');
88. ibid., §28 ('The more that the Rules and jurisprudence of this Tribunal are altered to incorporate features of a civil law approach, the more issues of this nature will present difficulty.').
89. Article 15 ICTYSt. provides: 'The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.'
90. Judge Richard May also saw the Tribunal as having one regime for the presentation of evidence and another for the admissibility of evidence; see May and Wierda, supra note 11, at 727.
91. See supra note 33.
92. Decision on Defence Interlocutory Appeal on Communication with Potential Witnesses of the Opposite Party, Mrkšić (IT-95-13/1-AR73), Appeals Chamber, 30 July 2003, § 13-14;
93. see also ibid., §15 ('Witnesses to a crime are the property of neither the Prosecution nor the Defence; both sides have an equal right to interview them.').
94. Decision on the Issuance of Subpoenas, Halilović (IT-01-48-AR73), Appeals Chamber, 21 June 2004, §15.
95. Ibid., §7 (citing Decision on Interlocutory Appeal, Brdanin and Talić (IT-99-36-AR73.9), §46, and describing that holding in these terms: '... in deciding whether a subpoena should be issued, a Trial Chamber must take into account not only the interests of the litigants but the overarching interests of justice and other public considerations').
96. Thus, in Milošević, Trial Chamber III, in explaining its decision to impose counsel on the accused, held that the right of an accused to self-representation or to representation by counsel served the purpose of ensuring that the accused had a fair trial, and if, for some reason, self-representation was no longer effective to achieve that purpose, it was proper to assign counsel to the accused; Reasons for Decision on Assignment of Defence Counsel, Milošević (IT-02-54-T), Trial Chamber, 22 September 2004, § 32-34.
97. Declaration of Judge Shahabuddeen, Decision on the Issuance of Subpoenas, supra note 63, at 8.
98. Decision on Application for Subpoenas, Krstić (IT-98-33-A), Appeals Chamber, 1 July 2003, §10.
99. Supra note 66, §3.
100. Although there is much to be said about the alignment of the legal systems in this area of the Tribunal's work, such a discussion is beyond the scope of this article.
101. See supra notes 33 and 34 and accompanying text.
102. J. Laughland, 'The anomalies of the International Criminal Tribunal are legion ...', The Times, 17 June 1999.
103. F. Tulkens, supra note 11, at 8 ('In any case, nowhere is the model any longer pure; it is, for better or worse, contorted, attenuated, modified.').