The marriage of common and continental law at the ICTY and its progeny, due process deficit

International Criminal Law Review

Volumn 4, Issue 3, 2004, Pages 243-319

  Fairlie, Megan ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

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EID: 34248056857     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/1571812041971643     Document Type: Article

References (221)

1. Virginia Morris and Michael P. Scharf, 1 An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia 177 (1995) [hereinafter 1 Morris & Scharf]. The submission included commentary and was approximately 75 pages in length. Suggestions Made by the Government of the United States of America, United Nations Document IT/14 (Nov. 17, 1993)
2. [hereinafter U. S. Suggestions] reprinted in Virginia Morris and Michael P. Scharf, 2 An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia 509 (1995) [hereinafter 2 Morris & Scharf].
3. See e.g., Christoph J. M. Safferling, Towards an International Criminal Procedure 223 (2001) (noting that the structure of the Tribunal's procedure is along the lines of the Anglo-American System);
4. Antonio Cassese, International Criminal Law 384 (2003) (remarking that the Tribunal adopted a system close to a U. S. prepared memorandum and that, accordingly, 'the court was conceived of as a sort of referee').
5. ICTY RPE, R. 62 (iii), United Nations Document IT/32 (1994). The Statute provides for the accused to enter a plea before the Trial Chamber.
6. Mirjan Damaška, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 University of Pennsylvania Law Review 506, 582 (1972-1973) [hereinafter Damaška, Evidentiary Barriers].
7. See also Abraham S. Goldstein, 'Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure', 26 Stanford Law Review 1009, 1019 (1973-74) (noting the absence of guilty pleas in the continental system due to the fact that the state may not abandon its duty to guarantee that the law is enforced and that the facts in each case support the relevant charge).
8. The judges are given the authority to order either party to produce additional evidence; they may also, proprio motu, summon witnesses. ICTY RPE, R. 98, United Nations Document IT/32 (1994).
9. see also Mirjan Damaška, 'Propensity Evidence in Continental Legal Systems', 70 Chicago Kent Law Review 55, 61 n. 16 (1994) (describing the Tribunal's rules of evidence as 'continental in orientation').
10. Of the 125 rules initially adopted, only ten were rules of evidence. Dirk Ryneveld, Q. C. & Daryl A. Mundis, 'The Contribution of the ICTY to the ICC: Procedural and Evidentiary Aspects from a Practitioner's Perspective' 51, 54, in The Changing Face of International Criminal Law: Selected Papers (2002).
11. See, e.g., Salvatore Zappalà, Human Rights in International Criminal Proceedings 17 (2003) (noting that the two models dominated the debate in the drafting of the Tribunal's Statute and Rules 'to an overwhelming extent').
12. See also Patricia M. Wald, 'The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court', 5 Washington University Journal of Law and Policy 87, 90-91 (2001) (remarking that the 'ICTY employs a sometimes uneasy and frequently awkward blend of the two systems', that 'there are numerous... areas where differing practices from the two systems clash' and that 'the lack of a common legal culture tends to produce frequent, small irritations and tensions throughout the trials').
13. See e.g., Patrick. L. Robinson, 'Ensuring Fair And Expeditious Trials At The International Criminal Tribunal For The Former Yugoslavia', 11 European Journal of International Law 569, 574 (2000) (limiting the 'main differences' between the two systems to trial features, specifically, judicial control over proceedings and admissibility of evidence).
14. 'American lawyers cling to the unfounded belief that modern systems of criminal procedure in civil law countries are wholly "inquisitorial". Rudolf B. Schlesinger, 'Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience', 26 Buffalo Law Review 361, 363 (1976) (noting that the thought is 200 years out of date).
15. See also Gordon Van Kessel, 'European Perspectives on the Accused as a Source of Testimonial Evidence', 100 West Virginia Law Review 799, 800 (1998) (commenting on American distrust of 'anything inquisitory');
16. Renee Lettow Lerner, 'The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour D'Assises', 2001 University of Illinois Law Review 791, 819 (2001) (observing that it was difficult for a French judge and prosecutor to appreciate the degree to which American prosecutions are adversarial).
17. William Pizzi and Luca Marafioti, 'The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation', 17 Yale Journal of International Law 1, 7;
18. Damaška, Evidentiary Barriers, supra note 8, at 581.
19. Deterrence is not the only motivating factor behind the exclusion of such evidence in common law courts, however. In rendering improperly obtained evidence inadmissible at trial, 'Irish courts... are motivated solely by the imperative of protecting the constitutional rights of the accused'. Dermot Walsh, Criminal Procedure, 460 (2002).
20. Damaška, Evidentiary Barriers, supra note 8, at 511.
21. Mirjan Damaška, 'The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments', 45 American Journal of Comparative Law 839, 843 (1997) [hereinafter Damaška, The Uncertain Fate].
22. Eric Manch, 'Throwing the Baby Out with the Bathwater: How Continental-Style Police Procedural Reforms Can Combat Racial Profiling and Police Misconduct', 19 Arizona Journal of International and Comparative Law 1025, 1037 (2002).
23. Damaška, Evidentiary Barriers, supra note 8, at 533. The dossier will also include the prosecutor's charge sheet which informs of the evidence that will be offered and the legal theories put forth.
24. Damaška, The Uncertain Fate, supra note 31, at 847 (noting that such attorney contact is nearly viewed as an attempt to 'pollute' the Court's sources of information). In France, prosecutors and defense attorneys alike are forbidden to interview non-party witnesses and the penalty for a defense lawyer who disobeys is disbarment.
25. M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia 899 (1996).
26. Scott T. Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 International Legal Perspectives 111, 145 (1998).
27. See also, Fionnuala Ni Aolain, 'The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis', 19 Michigan Journal of International Law 957, 1000 (1998) (noting the differences between common law and continental systems regarding the role of the police in the investigatory phase). In the United States, the Supreme Court defines the appropriate method of police activity, though this often results in a post hoc procedural protection.
28. Though not bound to collect exculpatory evidence, there is an affirmative obligation on behalf of the prosecutor to reveal information that benefits the accused when discovered. See, e.g., Brady v. Maryland, 373 United States 83 (1963). Objectivity differs from the continental perception; at common law, this requirement is fulfilled when in addition to amassing sufficient evidence against a suspect, police investigators also consider 'whether all reasonable alternatives have been rebutted'.
29. Damaška, The Uncertain Fate, supra note 31, at 847.
30. The contribution made at trial by continental lawyers is decidedly less: they are limited to making observations and presenting their opinions as to the conclusions that should be drawn from the investigation. Alphons Orie, Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings Before the ICC, in 2 The Rome Statute of The International Criminal Court: A Commentary 1439, 1445 (Cassese, Gaeta & Jones, eds., 2002).
31. It is often said that the common law judge plays a 'passive' role in trial proceedings. This does not mean that the judge is inactive; rather, the judge is reactive and serves to keep each of the parties in check by 'acting as an umpire or evidentiary traffic warden'. Gerald Walpin, 'America's Adversarial and Jury Systems: More Likely to Do Justice', 26 Harvard Journal of Law and Public Policy 175, 176 (2003).
32. Given the competitive nature of the system, third party intervention is likely to be seen as favoring one side over the other. Damaška, The Uncertain Fate, supra note 31, at 850.
33. Damaška, Evidentiary Barriers, supra note 8, at 525.
34. See also Damaška, The Uncertain Fate, supra note 31, at 850 (noting that an information rich dossier assists the continental judge in his fact-finding role and that this preparation creates a situation wherein continental judges have more work to do than their common law counterparts).
35. Additional witnesses are treated in a like manner. Mirjan Damaška, 'Of Hearsay and its Analogues', 76 Minnesota Law Review 425, 433 (1992) (noting that this interrogation technique decreases the need to interview witnesses pre-trial) [hereinafter Damaška, Of Hearsay].
36. Damaška, The Uncertain Fate, supra note 31, at 845-46 (observing how this disassociation distinguishes continental from common law procedure). 'According to a long-standing view, after a litigant has offered a witness to the court, he is treated as "common" to both sides'.
37. Damaška, The Uncertain Fate, supra note 31, at 845.
38. Federal Rules of Evidence (United States), Rule 901 (a).
39. Richard May & Marieke Wierda, International Criminal Evidence 18 (2002).
40. (noting this would not be so in the case of a dispute). Compare with Damaška, Evidentiary Barriers, supra note 8, at 519 n. 19 (affirming the ease with which material from the dossier may be introduced and noting that while material contained in the dossier does not constitute evidence if not introduced at trial, 'it does in fact influence the presiding judge and, through him, other members of the adjudicating panel').
41. In comparison to common law rules, this approach to evidence has been described as 'a shift away from presentation rules towards rules of decision or augmentation'. Sean Doran, John D. Jackson and Michael L. Seigel, 'Rethinking Adversariness in Nonjury Criminal Trials', 23 American Journal of Criminal Law 1, 21 (1995).
42. On these two types of rules, see generally Damaška, Evidentiary Barriers, supra note 8, at 514-525. 'Considerations extraneous to truth-finding', according to Wigmore, are 'extrinsic policy' rules that 'do not aim at the strengthening of the mass of evidence but at the avoidance of collateral disadvantages unconnected with the object of securing good evidence'.
43. Dale A. Nance, 'The Best Evidence Principle 73 Iowa Law Review' 227, 277 (1988)
44. (quoting 4 John Wigmore, Evidence §1171, at 297-98 (3d ed. 1940)). An example of the same would be the exclusion of illegally obtained evidence.
45. Damaška, Evidentiary Barriers, supra note 8, at 522.
46. See also, Nancy Armoury Combs, 'Copping a Plea to Genocide: The Plea Bargaining of International Crimes', 151 University of Pennsylvania Law Review 1, 34 (2002) (noting that, in mixed panels, 'professional judges guide their lay colleagues'). It is noteworthy, however, that '[m]ost cases are tried exclusively by professional judges'.
47. Bernard Michael Ortwein II, 'The Swedish Legal System: An Introduction', 13 Indiana International and Comparative Law Review 405, 431 (2003).
48. See, e.g., David Leonard, The New Wigmore: A Treatise on Evidence Selected Rules on Limited Admissibility §1.7 (2000) (noting that 'evidence law is a product of the jury system'
49. (quoting James B. Thayer, Preliminary Treatise on Evidence at Common Law 509 (1898)) and the more extreme view that evidence rules 'are absurdly inappropriate to any tribunal or proceeding where there is no jury'
50. (quoting Charles T. McCormick, 'Evidence', in 5 Encyclopedia of Social Sciences 637, 644 (1931)).
51. However, the validity of such an assumption is far from clear. It is difficult to assess the manner in which lay jurors evaluate evidence in light of the fact that they return a verdict rather than a judgment. John H. Langbein, 'Historical Foundations of the Law of Evidence: A View from the Ryder Sources', 96 Columbia Law Review 1168, 1194-95 (1996).
52. Damaška, Evidentiary Barriers, supra note 8, at 514. Continental lawyers seem 'more optimistic than their common law brethren that the factfinders, lay or professional, will be capable of disregarding the influence of relevant but untrustworthy evidence - for example, some types of hearsay - and, having heard it, exclude it from the calculus of decision'.
53. This set-up makes exclusion of proof less practical. 'Where the need for screening of information arises at the trial, the difference between bifurcated and unitary decision making is highly significant'. Damaška, Of Hearsay, supra note 62, at 427. Though there are potential remedies to the difficulty created by unitary decision making in this regard, such as a pre-trial hearing on admissibility of contested evidence before another judge, such alternatives have not been embraced on the Continent.
54. Damaška, Evidentiary Barriers, supra note 8, at 524. Such a set-up would arguably be thought to be too costly and too time consuming.
55. Damaška, Of Hearsay, supra note 62, at 446.
56. This stance is unquestionably challenged by the fact that, at common law, exclusionary rules are also applicable in bench trials. William Twining, Rethinking Evidence: Exploratory Essays, What is the law of evidence? 178, 182 (1990). 'Some common law lawyers currently find exclusionary rules, though somewhat modified, to be imperative in non-jury cases'.
57. Damaška, Evidentiary Barriers, supra note 8, at n. 9. For an example of a common law plea for the creation of special rules with which to govern bench trials
58. see Kenneth Culp Davis, 'Hearsay in Nonjury Cases', 83 Harvard Law Review 1362 (1970).
59. See, e.g., Kevin M. Clermont and Emily Sherwin, 'A Comparative View of Standards of Proof, 50 American Journal of Comparative Law 243, 245 (2002).
60. Damaška, Evidentiary Barriers, supra note 8, at 510-11.
61. Damaška, Of Hearsay, supra note 62, at 432. 'These rules are necessary in the contest model... to ensure that the parties contest against each other fairly'.
62. Damaška, Of Hearsay, supra note 62, at 431.
63. Damaška, Evidentiary Barriers, supra note 8, at 525.
64. See, e.g., Lawrie v. Muir, 1950 Scots Law Times 37, 40 (1949) (noting that 'the interest of the state cannot be magnified to the point of causing all the safeguards for the protection of the individual to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods'). By contrast, Irish rulings in this area relate exclusively to the need to protect the constitutional rights of the accused.
65. Damaška, Evidentiary Barriers, supra note 8, at 587 (noting the same to be a 'natural outgrowth' of the two system's disparate commitment to the pursuit of truth).
66. Bradley F. Smith, The Road to Nuremberg 4 (1981).
67. Further, conferring this authority upon a neutral country would have been unlikely without regard to the dilution of power. Such countries were often looked upon with disfavor in the aftermath of World War II for failing to take a stand or for altering their perceived alliances depending upon which side appeared to have the upper hand in the war. Michael R. Marrus, The Nuremberg War Crimes Trial 1945-1946 A Documentary History 251 (1997).
68. The US delegate to the London meeting observed 'a fundamental cleavage, which persisted throughout the negotiations' as a result of the distinctions between the adversarial and inquisitorial systems. International Conference on Military Trials at vi, available at .
69. See, e.g., Observations of the French Delegation on the Draft Agreement Submitted by the American Delegation, 28 June 1945, at paragraph 2 (a), International Conference on Military Trials available at . [hereinafter French Observations];
70. Comments and Proposals of Soviet Delegation on American Draft, 28 June 1945, International Conference on Military Trials, available at .
71. Telford Taylor, The Anatomy of the Nuremberg Trials 64 (1992).
72. William A. Schabas, 'Sentencing by International Tribunals: A Human Rights Approach', 7 Duke Journal of Comparative and International Law 461, 514 (1997).
73. Among these, that defendants be given reasonable notice of the charges against them and be given a fair opportunity to be heard either personally or through counsel before the Tribunal. Revision of American Draft of Proposed Agreement, 14 June 1945, at paragraph 16, available at .
74. Evan J. Wallach, 'The Procedural And Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide An Outline For International Legal Procedure?', 37 Columbia Journal of Transnational Law 851, 868 (1999).
75. Charter of the International Military Tribunal, art. 19, 8 Aug. 1945, 59 Stat. 1544, 82 United Nations Treaty Series. 279 [hereinafter Nuremberg Charter]
76. Chief Prosecutor Robert Jackson, referred to the common law evidentiary rules as 'a complex and artificial science to the minds of Continental lawyers, whose trials usually are conducted before judges and do not accord the jury the high place it occupies in our system' International Conference on Military Trials at xi, available at .
77. Richard H. Minear, Victors' Justice: The Tokyo War Crimes Trial 118 (1971).
78. 'The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions or statements of the accused are admissible'. Charter of the International Military Tribunal for the Far East, art. 13 (a), available at . Among other provisions, the Charter also provided for the admission of affidavits, depositions, and signed statements as well as documents issued or signed by the armed forces of any government without further authentication.
79. See also James C. O'Brien, 'The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia', 87 American Journal of International Law 639, 655 (1993) (noting that the Article XIII of the Tokyo Charter stipulated that certain documents would be admitted despite the fact that their origin and authenticity could not be determined).
80. Arguing before the Tribunal on the matter, Jackson noted, 'We have no jury. There is no occasion for applying jury rules'. 3 International Military Tribunal, Blue Series 543 [hereinafter Jackson address], available at .
81. Stephen Landsman, 'Legal History: Those Who Remember the Past May Not Be Condemned to Repeat It', 100 Michigan Law Review 1564, 1571 (2002) (book review) (noting, additionally, that '[m]any of the safeguards that ensure the integrity of adversary proceedings were abandoned at Nuremberg'). At the Tokyo trials, Judge Pal noted that the evidentiary rules that had been discarded were 'devised by various national systems of law, based on litigious experience and to guard against erroneous persuasion...'
82. Justice Jackson's Report to the President on Atrocities and War Crimes III, at paragraph 2, (June 7, 1945), available at . This statement is preceded by the comment that: '[t]hese hearings, however, must not be regarded in the same light as a trial under our system, where defense is a matter of constitutional right. Fair hearings for the accused are, of course, required to make sure that we punish only the right men and for the right reasons. But...'
83. See also, Diane Marie Amann, 'Harmonic Convergence? Constitutional Criminal Procedure in an International Context', 75 Indiana Law Journal 809, 820 (2000) (noting that the post-World War II trials took place prior to a host of US Supreme Court decisions that declared many aspects of constitutional criminal procedure to be fundamental components of the trial process). 'The right to a fair trial, as it is conceived today is judgemade human rights law. It does not stand still but keeps developing'. The Universal Declaration of Human Rights: A Common Standard of Achievement 225 (Gudmundur Alfredsson & Asbjorn Eide, eds. 1999).
84. David Harris, 'The Right to a Fair Trial as a Human Right', 16 International & Comparative Law Quarterly 352, 378 (1967).
85. Organization of American States Resolution XXX, Signed May 2, 1948, available at .
86. General Assembly Resolution 217A (III), Arts. 9-12, United Nations General Assembly Official Record, 3rd Session, Supp. No. 16, United Nations Document A/810(1948), available at [hereinafter Universal Declaration].
87. Edward D. Re, 'International Judicial Tribunals and the Courts of the Americas: A Comment with Emphasis on Human Rights Law', 40 St. Louis Law Journal 1091, 1095 (1996).
88. See also Gideon Boas, 'Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility', 12 Criminal Law Forum 41, 66 (2001) (noting that 'the ICTY has been given an adversarial structure by virtue of its Statute') [hereinafter Boas, The Principle of Flexibility].
89. '"Any other source" must... include the Tribunal and the Security Council'. Daniel D. Ntanda Nsereko, 'Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia', 5 Criminal Law Forum 507, 517 (1994).
90. Kai Ambos, 'International Criminal Procedure: "adversarial", "inquisitorial" or "mixed?", 3 International Criminal Law Review 1, 5 (2003). 'The initial work done by the ILC in 1992 was an influence upon the ICTY Statute'.
91. (remarking that '[i]nspired by the [European] Court of Human Rights,... Continentals have been moving toward more adversary forms of procedure'). The assertion that human rights law has fostered a movement toward adversarial criminal procedure is also supported by the subsequent establishment of International Criminal Court (ICC), created pursuant to the Rome Statute of the International Criminal Court, Adopted at the United Nations Diplomatic Conference of Plenipotentiaries, 17 July 1998, United Nations Document A/CONF.183/9 (1998). The ICC also adopted an adversarial-accusatorial framework, a decision 'motivated by a desire to protect the rights of the accused'. M. Cherif Bassiouni, 'Negotiating the Treaty of Rome on the Establishment of an International Criminal Court', 32 Cornell International Law Journal 443, 465 (1999).
92. See also Michaïl Wladimiroff, 'The Rights of Suspects and Accused', in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts 419, 430 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman, eds., 2000) (remarking that the Tribunal 'should ensure the right to a fair trial in accordance with the highest UN and other international standards at all stages of the proceedings').
93. ICTY RPE, R. 39, R.42, United Nations Document IT/32 (1994).
94. See also ICTY RPE, R.47 (C), (D) United Nations Document IT/32 (1994) (providing that the indictment and supporting materials be forwarded to one of the Judges of the Trial Chamber and that a date be set for the Judge to hear from the Prosecutor on the indictment prior to its confirmation or dismissal).
95. The continental/common law divide is heightened by the fact that the indictment remains private until the confirmation. ICTY RPE, R. 52, United Nations Document IT/32 (1994). In addition, an indictment that has been confirmed may remain secret until such time as it has been served, if necessary in the interest of justice.
96. icty RPE, R. 47 (D), United Nations Document IT/32 (1994).
97. icty RPE, R. 85, United Nations Document IT/32 (1994) (providing also, consistent with the adversarial construct, that evidence for the prosecution be presented first).
98. See also, Louise Arbour, 'The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results', 3 Hofstra Law and Policy Symposium 37, 46 (1999) (observing that the Tribunal is 'completely dominated by the Anglo-American system').
99. Rod Dixon, 'Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals', 7 Transnational Law and Contemporary Problems. 81, 97 (1997). The author proceeds to note that despite the fact that certain rules 'have an adversarial inclination, they simultaneously reflect civil law characteristics'.
100. 'The backlash against the Nuremberg and Tokyo war crimes tribunals began even before those trials ended and continues to this day as judges, lawyers and academics decry the imposition of "victors" justice', the application of retroactive laws and the denial of procedural rights essential to a fair trial'. 'Developments in the Law - International Criminal Law: Fair Trials and the Role of International Criminal Defense', 114 Harvard Law Review 1982, 1982 (2001) [hereinafter Developments in the Law].
101. Robert H. Jackson, Report to the President, 7 Oct. 1946.
102. (quoting Cassese's interview of Judge Röling as excerpted from B. V. A. Röling, The Tokyo Trial and Beyond: Reflections of a Peacemonger 51 (1993)). Citing the fact that the prosecution was in possession of all the documents, had the manpower to prepare its case and that the defense was clearly in an inferior position, Röling maintained that '[t]he Anglo Saxon Party system may have its advantages, but it can only work effectively if there is a certain equality of arms between the parties. That was not the case in the post war trials'.
103. Damaška, The Uncertain Fate, supra note 31, at 851.
104. This is consistent with the adversarial construct: 'If the structure of the proceeding is envisaged as a dispute between two parties, where each of them bears the burden of proving the facts stated in court, any official adducing of evidence will indeed inevitably help one of the two sides'. Elisabetta Grande, 'Italian Criminal Justice: Borrowing and Resistance', 48 American Journal of Comparative Law 227, 245 (2000).
105. (quoting Mirjan Damaška, Evidence Law Adrift 74 (1997)).
106. See, e.g., Ellen E. Sward, 'Values, Ideology and the Evolution of the Adversary System', 64 Indiana Law Journal 301, 321 n. 96 (1989).
107. (quoting Stephen A. Saltzburg, 'The Unnecessarily Expanding Role of the American Trial Judge', 64 Virginia Law Review 1, 55 (1978).
108. John D. Jackson and Sean Doran, 'Conventional Trials in Unconventional Times', 4 Criminal Law Forum 503, 513 (1993) (noting that judicial intervention for the purpose of clarification fits acceptably within the 'adversarial ideal').
109. ICTY RPE, R. 98, United Nations Document IT/32 (1994). According to one source, this Rule responds directly to the concerns expressed by judges who served at the Tokyo Tribunal The jurists felt stilted in the proceedings and would have preferred an opportunity to have access to additional evidence.
110. icty RPE, R. 85 (B), United Nations Document IT/32 (1994).
111. Rather, this expression generally connotes a situation wherein exclusionary rules preclude a party from introducing an otherwise reliable, inculpatory and critical piece of evidence. See generally Barry F. Shanks, 'Comparative Analysis of the Exclusionary Rule and Its Alternatives', 57 Tulane Law Review 648 (1983).
112. See also Kenneth Williams, 'Do We Really Need the Federal Rules of Evidence?' 74 North Dakota Law Review 1, 17 (1998) (noting that, as the decisions of international tribunals tend to affect thousands of individuals as well as international relations, '[t]he court is therefore reluctant to allow a case to turn upon a technical rule of evidence').
113. International Covenant of Civil and Political Rights, entered into force 23 Mar. 1976, Art. 14(2), 999 United Nations Treaty Series 171 [hereinafter ICCPR];
114. European Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force 3 Sept. 1953, Art. 6 (2)
115. 213 United Nations Treaty Series 221 [hereinafter European Convention], American Convention on Human Rights, entered into force 18 July 1978, Art. 8 (2)
116. 1144 United Nations Treaty Series 123[hereinafter ACHR], African Charter on Human and People's Rights, adopted on 15 Sept. 1994, Art. 7 (1) (b), Organization of African Unity Document CAB/LEG/67/3, 21 International Legal Materials 58[hereinafter African Charter];
117. Universal Islamic Declaration of Human Rights, 19 Sept. 1981, Art. III (1982) 4 European Human Rights Reports 433.
118. Mia Swart, 'Ad Hoc Rules for Ad Hoc Tribunals? The Rule-Making Powers of the Judges of the ICTY and ICTR', 18 South African Journal on Human Rights 570, 577 (2002).
119. Yuil v. Yuil, 1945 Court of Appeal 15, 20 (1944) (Eng.) (noting also that an active judge 'unconsciously deprives himself of the advantage of calm and dispassionate observation').
120. (noting the widely held view, under the Italian system prior to its 1988 reform, that 'the trial court's review of the pre-trial material inevitably affected the court's decision and encouraged - consciously or unconsciously - the trial judge to accept the approach taken by the public official during the pre-trial phase'). Referring to the effect of pretrial access to the dossier upon judicial impartiality, it has been observed that, 'Aby-product of the Continental practice is that the president cannot come into court with a perfectly open mind. Since the task of interrogation devolves upon him, he must spend as much time studying the bulky dossier as an English prosecuting counsel in getting up his instructions and proof of evidence... [The procedure] creates a danger that the point of view of the prosecution will communicate itself to the judge before the case has been heard'. Abraham S. Goldstein & Martin Marcus, 'The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy and Germany', 87 Yale Law Journal 240, 265 (1977-1978)
121. (quoting G. Williams, The Proof of Guilt, 31-32 (1963)).
122. ICTY RPE, R. 39, United Nations Document IT/32 (1994).
123. 'A Judge may not sit on a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in such circumstances withdraw, and the President shall assign another judge to sit in his place'. ICTY RPE, R. 15 (A), United Nations Document IT/32 (1994).
124. ICTY RPE, R. 15 (C), United Nations Document IT/32 (1994). Similarly, Rule 15 also provides: 'No member of the Appeals Chamber shall sit on any appeal in a case in which he sat as a member of the Trial Chamber'.
125. (quoting Musema, Judgment and Sentence, at paragraph 75, Case No. ICTR-96-13-T (Jan. 27, 2000)).
126. See, e.g., ICTY RPE, R. 96, United Nations Document IT/32 (1994) (providing that, in cases of rape, no corroboration of victim testimony is required, under certain circumstances consent shall not be allowed as a defense and that the victim's prior sexual conduct may not be admitted into evidence). The rule's carte blanche prohibition against the defense of consent was later amended; the revised rule delineates those circumstances under which the defense cannot be raised.
127. 'Relevant evidence is evidence that must tend to prove or disprove a factual proposition'. Patricia Viseur Sellers, 'Rule 89 (C) and (D): At Odds or Overlapping with Rule 96 and 95?'
128. in Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald 275, 277 (Richard May et al. eds., 2001).
129. ICTY RPE, R. 89 (C), United Nations Document IT/32 (1994).
130. ICTY RPE, R. 89 (D), United Nations Document IT/32 (1994). Even if evidence has been admitted as relevant and having probative value, it may later be excluded.
131. See, e.g., Prosecutor v. Tadic, Decision on Defence Motion on Hearsay, at paragraph 18, Case No. IT-94-I-T (Aug. 5, 1996).
132. icty RPE, R. 89 (B), United Nations Document IT/32 (1994) (instructing that the rules applied need to be consonant with the Statute and general principles of law).
133. Richard May and Marieke Wierda, 'Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha', 37 Columbia Journal of Transnational Law 725, 751 (1999) [hereinafter May & Wierda, Trends].
134. See also Michael P. Scharf, 'A Critique of the Yugoslavia War Crimes Tribunal', 13 Nouvelles Études Pénales 259, 263 (1997). The need to adopt an alternative approach to written evidence than that of Nuremberg was recognized by a member of the United Nations Commission of Experts for the Former Yugoslavia. To his observation, a highly document-based prosecution 'would not be acceptable today because of post-World War II developments in international human rights law'.
135. (quoting W. J. Fenrick, 'In the Field with UNCOE: Investigating Atrocities in the Territory of the Former Yugoslavia', 34 The Military Law and Law of War Review 33, 36 (1995).
136. The Sub-rule provided: 'Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that witness be heard by means of a deposition as provided for in Rule 71'. ICTY RPE, R. 90 (A), United Nations Document IT/32 (1994).
137. George E. Edwards, 'International Human Rights Law Challenges the New International Criminal Court: The Search and Seizure Right to Privacy', 26 Yale Journal of International Law 323, 334 (2001).
138. Erik G. Luna and Douglas J. Sylvester, 'Beyond Breard', 17 Berkeley Journal of International Law 147, 179 (1999).
139. The Tribunal does have the power to hold individuals in contempt for knowing and willful interference with its administration. ICTY RPE, R. 77, United Nations Document IT/32 (1994). While this type of official misconduct would arguably fall within the parameters of the same, an attempt to use this power on behalf of the Tribunal to discipline national authorities would no doubt come with its own share of difficulties.
140. Damaška, Evidentiary Barriers, supra note 8, at 522.
141. Regina (Respondent) v. Sang (Appellant), 1980 Appeal Cases 402, 457 (1979) (Eng.)
142. (quoting Sheriff MacPhail, Law of Evidence in Scotland, at paragraph 21.01 (April, 1979)). Until recently, New Zealand employed a prima facie exclusionary rule that placed the 'onus on the prosecution to demonstrate why the court should not follow the normal course of excluding tainted evidence'.
143. Richard Mahoney, Abolition of New Zealand's Prima Facie Exclusionary Rule, 2003 Criminal Law Review 607. Pursuant to a 2002 Court of Appeal decision, judges are now required to consider numerous balancing factors, reflecting public and private interests, when the prosecution seeks to rely on improperly obtained evidence.
144. see, respectively, Peter Murphy, Murphy on Evidence 81-100 (7th ed., 2000) (noting that while British jurisprudence rejects the theory that evidence should be held inadmissible merely on the ground of the manner in which it was obtained, pursuant to statute, improperly obtained evidence may be excluded if admission would have an adverse effect on the fairness of proceedings);
145. Damaška, Evidentiary Barriers, supra note 8, at 522 n. 26.
146. Despite this, its title 'Evidence Obtained by Means Contrary to Internationally Protected Human Rights' would remain in tact for more than two years until amended to read 'Exclusion of Certain Evidence'. John R. W. D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda 427-428 (2000). The fact that the title remained appears to have caused a certain amount of confusion.
147. ICTY RPE, R. 89 (E), United Nations Document IT/32 (1994) (providing that 'AChamber may request verification or authentication of evidence obtained out of court). This is designed to expedite trial proceedings.
148. See generally ICTY RPE, United Nations Document IT/32 (1994);
149. Almiro Rodrigues and Cécile Tournaye, Hearsay Evidence, in Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald 291, 296 (Richard May et al. eds., 2001)
150. David Lusty, 'Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials', 24 Sydney Law Review 361, 361 (2002).
151. (quoting John H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law 29, §1367 (3rd ed., 1940).
152. See, e.g., James Mullineux, 'Re-examining the Common Law Right of an Accused not to Testify', 12 Criminal Law Forum 359, 359 (2002) (noting that the right to silence at all stages of the criminal justice process is 'a fundamental principle of the accusatorial criminal justice system' and also remarking on the widely recognized common law rule that the prosecution cannot comment on the silence of the accused).
153. See, e.g., Andrew N. Keller, 'Punishments for Violations of International Criminal Law: An Analysis of Sentencing of the ICTY and the ICTR', 12 Indiana International and Comparative Law Review 53, 69 (2001).
154. ICTY RPE, R. 85 (B), United Nations Document IT/32 (1994).
155. icty RPE, R. 100, United Nations Document IT/32 (1994) (providing that '[i]f a Trial Chamber finds the accused guilty of a crime, the Prosecutor and the defense may submit any relevant information that may assist the Trial Chamber in determining an appropriate sentence').
156. See also Stuart Beresford, 'Non-Compliance with the Rules of Procedure and Evidence', in Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald 403, 403 (Richard May et al. eds., 2001) (noting that 'the investigation and pre-trial stages of the proceedings receive only modest supervision').
157. icty RPE, R. 42, 43, United Nations Document IT/32 (1994) (delineating the rights of suspects during investigation in the first instance and requiring that suspect questioning be recorded, that a transcript be made and that the original be sealed in the presence of the suspect in the second).
158. See also Judge Lal Chand Vohrah, 'Pre-Trial Practices and Procedures', in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts 477, 535 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman, eds., 2000) (observing that '[t]here is no possibility of appeal against the confirmation of an indictment by a single judge pursuant to Rule 47').
159. Patricia M. Wald, 'To "Establish Incredible Events by Credible Evidence": The use of Affidavit Testimony in the Yugoslavia War Crimes Tribunal Proceedings', 42 Harvard International Law Journal 535, 537 (2001) [hereinafter, Wald, Incredible Events] (observing that the Tribunal operates 'largely in isolation, not as part of a national system of courts or governmental bodies capable of oversight').
160. icty RPE, R. 6, United Nations Document IT/32 (1994).
161. Daryl A. Mundis, 'Improving the Operation and Function of the International Criminal Tribunals', 94 American Journal of International Law 759, 766 (2000).
162. Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics and Morals 1156 (2000). Accordingly, Steiner and Alston further note that the Tribunal 'remains dependent upon an uncertain and changing political context' and that it 'lacks the relative autonomy of a court in a state with a strong tradition of an independent judiciary'.
163. Established under the Statute of the International Criminal Tribunal for Rwanda, 33 International Legal Materials 1602, adopted by Security Council Resolution 955, United Nations Security Council Official Record, 49th Session, 3453rd meeting at 3, United Nations Document S/RES/955 (1994).
164. See Decision on Prosecutor's Request for Review or Reconsideration, Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, 39 International Legal Materials. 1181, 31 Mar. 2000;
165. see also William A. Schabas, 'International Decision, Barayagwiza v. Prosecutor', 94 American Journal of International Law 563 (2000);
166. Jacob Katz Cogan, 'International Criminal Courts and Fair Trials: Difficulties and Prospects', 27 Yale Journal of International Law 111, 135 (2002).
167. On this issue, see Megan A. Fairlie, Due Process Erosion: The Diminution of Live Testimony at the ICTY, 34 California Western International Law Journal 47, 58-59 (2003).
168. In 1999, the General Assembly adopted a resolution on the financing of both the ICTY and ICTR, requesting that the Secretary-General evaluate the efficiency of the operation and function of the two tribunals. Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991, United Nations General Assembly Official Record, 55th Session, Item 52 of the Provisional Agenda, at paragraph 320, United Nations Document A/55/273-S/2000/777 (2000) [hereinafter 7th Annual Report]. The expert group assigned the responsibility of evaluating the Tribunals was required to explain why, after six years and budgets totalling over USD 400 million, only 15 ICTY and ICTR trials had been completed. See Hafida Lahiouel, 'The Right of the Accused to an Expeditious Trial', in Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald 197, 197 (Richard May et al. eds., 2001)
169. (citing the Report of the Expert Group to Conduct a Review of the Effective and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, United Nations General Assembly Official Record, 55th Session, at paragraph 35, United Nations Document A/54/634 (1999)) [hereinafter Report of the Expert Group].
170. In the aftermath of the Report of the Expert Group, the Tribunal noted that 'flexible solutions' were required in order for the judiciary to work with their increased caseloads, and 'with the expectations of the accused, the victims and the international community'. 7th Annual Report, supra note 312, at paragraph 330. The relevance of the perspective of the international community upon the Tribunal can be further gleaned by referring to an observation made by Judge May in the course of trial proceedings: 'It is a matter of concern to the international community that these trials have been taking up six months and more each'.
171. Prosecutor v. Sikirica and Others, Case No. IT-95-8-T, Trial Transcript 2441 (Apr. 24, 2001).
172. Sara Stapleton, 'Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation', 31 New York University Journal of International Law and Politics 535, 543 (1999)
173. Joseph L. Falvey, Jr., 'United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia', 19 Fordham International Law Journal 475, 476-477 (1995).
174. Similarly, it has been noted that '[procedural rulings at the international level receive much less attention than substantive ones'. Natasha A. Affolder, 'Tadic, the Anonymous Witness and the Sources of International Procedural Law', 19 Michigan Journal of International Law 445, 448 (1998).
175. Robert M. Hayden, 'Biased "Justice:" Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia', 47 Cleveland State Law Review 549, 550 (1999).
176. See, e.g., ICCPR, supra note 203, at Art.14 (3) (c);
177. European Convention, supra note 203, at Art. 6 (1);
178. ACHR, supra note 203, at Art. 8 (1);
179. African Charter, supra note 203, at Art. 7 (1).
180. icty RPE, R. 65 (B), United Nations Document IT/32 (1994)
181. The provision of pretrial release is considered 'an accoutrement of the presumption of innocence'. Patricia Waldand Jenny Martinez, 'Provisional Release and the ICTY: A Work in Progress', in Essays on ICTY Procedure and Evidence In Honour of Gabrielle Kirk McDonald 231, 231 (Richard May et al. eds., 2001). Though the Tribunal has since modified this preference, the effect of the amendment is still uncertain.
182. Richard J. Goldstone, 'The Role of the United Nations in the Prosecution of International War Criminals', 5 Washington University Journal of Law and Policy 119, 123-24 (2001).
183. Boas, The Principle of Flexibility, supra note 148, at 45.
184. President Gabrielle Kirk McDonald, 'Trial Procedures and Practices', in 1 Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts 547, 621 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman, eds., 2000).
185. See also Minna Schrag, 'The Yugoslav War Crimes Tribunal: An Interim Assessment', 7 Transnational Law and Contemporary Problems 15, 19 (1997) (noting the importance of the Tribunal's role in creating an accurate record in order to prevent denials of the atrocities in the future).
186. See, e.g., ICTY RPE, R. 90 (A), United Nations Document IT/32 (1994)
187. (establishing a preference for live testimony). New sub-rule 89 (F), establishes a 'no preference alternative'. The new rule provides: 'A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form'. ICTY RPE, R. 89 (F), United Nations Document IT/32/Rev. 28 (2003).
188. Gideon Boas, 'Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court', 12 Criminal Law Forum. 167, 178 (2001).
189. See, e.g., ICTY RPE, R. 87 (C), United Nations Document IT/32/Rev. 13 (1998) (providing that, if the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall at the same time determine the penalty to be imposed in respect of each finding of guilt). '[T]his change was probably an effort to save time and money by having only one proceeding instead of two'.
190. ICTY RPE, R. 15 (C), United Nations Document IT/32 (1994).
191. ICTY RPE, R. 47 (C), (D), United Nations Document IT/32 (1994). Former Chief Prosecutor Richard Goldstone provides some insight into the proceedings. 'After the chief prosecutor signs the indictment... [t]he judge usually calls in the chief prosecutor and requests further information; not infrequently the merits of the indictments or aspects of it are debated. [The] review process might take days or even weeks'.
192. Richard J. Goldstone, For Humanity: Reflections of a War Crimes Investigator 108 (2000). With regard to delay in decision-making
193. see ICTY RPE, R. 47 (D) (providing that the confirming judge may adjourn the review).
194. See also Bartram S. Brown, 'Nationality and Internationality in International Humanitarian Law, 34 Stanford Journal of International Law' 347, 370 n. 106 (1998) (remarking that after an informal review, the confirming judge may question the prosecutor and that '[t]he indictment, as ultimately confirmed, may be transformed by this process of dialogue between the judge and the prosecutor').
195. icty RPE, R. 65 bis, United Nations Document IT/32/Rev. 11 (1997).
196. icty RPE, R. 73 bis, United Nations Document IT/32/Rev. 13 (1998) (providing in part that, '[p]rior to the commencement of the trial, the Trial Chamber shall hold a Pre-Trial Conference').
197. Boas, The Principle of Flexibility, supra note 148, at 61.
198. ICTY RPE, R. 73 bis (B) (i), (ii), (iii), United Nations Document IT/32/Rev. 13 (1998).
199. ICTY RPE, R. 65 ter (D) United Nations Document IT/32/Rev. 13 (1998) (providing also that the Pre-Trial Judge may be responsible for determining motions made pursuant to R.73).
200. icty RPE, R. 65 ter (E) (iv) (b), United Nations Document IT/32/Rev. 17 (1999) (providing that the Pre-Trial Judge shall order the Prosecutor to file a list of witnesses including a summary of the facts on which they will testify). Previously, such filings could be required by the Trial Chamber, but were not mandatory in each case.
201. icty RPE, R. 65 ter (E) (i), United Nations Document IT/32/Rev. 20 (2001).
202. icty RPE, R. 65 ter (F), United Nations Document IT/32/Rev. 17 (1999) (requiring that the pre-trial brief be filed at least seven days before the Pre-Trial Conference). The pre-trial brief must now be filed three weeks prior to the Pre-Trial Conference.
203. ICTY RPE, R. 65 ter (F), United Nations Document IT/32/Rev. 28 (2003).
204. icty RPE, R. 65 ter (F), United Nations Document IT/32/Rev. 17 (1999).
205. icty RPE, R. 65 ter (F) (i), (ii), (iii), United Nations Document IT/32/Rev. 17 (1999) requiring as well that the accused set out those matters in the Prosecution's brief with which he takes issue and the reasons behind the disagreement.
206. This provision can now be found in ICTY RPE, R. 65 ter (L) (i), United Nations Document IT/32/Rev. 28 (2003).
207. André Klip, 'The Decrease of Protection under Human Rights Treaties in International Criminal Law', 68 International Review of the Penal Law 291, 303 (1997).
208. See, e.g., ICTY RPE, R. 65 ter (C) (iv), United Nations Document IT/32/Rev. 28 (2003).
209. Olivier Fourmy, Powers of the Pre-Trial Chambers, in The Rome Statute of The International Criminal Court: A Commentary 1207, 1229 (Cassese, Gaeta & Jones, eds., 2002).
210. An alternative argument must also be acknowledged. It could be asserted that the Tribunal's approach is acceptable in terms of impartiality in that, at the close of the prosecution's case, the defense is required to make filings similar to those required of the prosecution. See ICTY RPE, R. 65 ter (G), United Nations Document IT/32/Rev. 28 (2003). This argument is difficult to sustain for several reasons. First, it still results on a scenario that is devoid of neutral and impartial investigation. Further, pursuant to the Tribunal's Rules, the Trial Chamber will have been exposed to the evidence of the prosecution at least twice (possibly three times, due to the fact that the evidence in the case file may be repetitious) prior to the accused being given an opportunity to plead his case. This contrasts sharply with the continental scenario wherein, after exposure to the impartially assembled dossier, the accused is generally permitted to present his case first. Further, it is submitted that this system of 'pre-case' filings generally does not inure to the benefit of the accused. A particularly inflammatory piece of evidence included in the prosecution's submission that fails to materialize at trial might likely remain in the minds of those adjudicating the guilt of the accused. By contrast, should the accused include exculpatory evidence in his filings that he is unable to substantiate at trial, such a failure would arguably serve to his detriment, whether this fact is officially recognized or not.
211. ICTY RPE, R. 15 (C), United Nations Document IT/32/Rev. 16 (1999).
212. William A. Schabas, An Introduction to the International Criminal Court 30 (2001).
213. ICTR PRESS BRIEFING, ICTR/INFO-9-13-007, 22 Feb. 2000.
214. See Bureau Decision, The Prosecutor v. Galic, Decision on Galic's Application Pursuant to Rule 15 (B), 2, Case No. IT-98-29-AR54 (28 Mar. 2003) [hereinafter Bureau Decision].
215. Mary Ann Glendon, Michael Wallace Gordon and Christopher Osakwe, Comparative Legal Traditions 180 (1985) (noting that these issues connote the two major distinctions between common law and continental systems).
216. Raneta Lawson Mack, 'It's Broke So Let's Fix It: Using a Quasi-Inquisitorial Approach to Limit the Impact of Bias in the American Criminal Justice System', 7 Indiana International and Comparative Law Review 63, 72-73 (1996) (noting the same to be true of examining magistrates).
217. Had the assertion been central to the Trial Chamber's decision, the finding of one Trial Chamber has no binding force on the decisions of other Trial Chambers. Prosecutor v. Aleksovski, Judgement, at paragraph 114, Case No. IT-95-14/1-A (24 March 2000) (noting, however, that the Trial Chambers are free to follow the decisions of one another).
218. The Rules only provide for disclosure to the defense of exculpatory materials known to the prosecution. ICTY RPE, R. 68, United Nations Document IT/32 (1994).
219. Prosecutor v. Milosevic, Decision on Admissibility of Prosecution Investigator's Evidence, Partial Dissenting Opinion of Judge Shahabuddeen, at paragraph 18, Case No. IT-02-54-AR.73.2 (30 Sept. 2002) (citing, as the basis of these assertions, representations made by representatives of the Office of the Prosecutor throughout the course of trial proceedings, along with a regulation issued by the Chief Prosecutor in 1999).
220. Further, although some might be hard pressed to appreciate the need to bestow procedural safeguards upon individuals alleged to have committed the most horrific of acts, one cannot disregard the fact that an accused person enjoys a presumption of innocence. Indeed, it is not impossible to conceive of the possibility that an accused appearing before the Tribunal may not even be the individual intended to be charged. See, e.g., Faiza Patel King and Anne-Marie la Rosa, 'The Jurisprudence of the Yugoslavia Tribunal: 1994-1996', 8 European Journal of International Law 123, 171-172 (1997) (detailing the arrest of an innocent person who had the misfortune of sharing the same name and date of birth as the actual accused).
221. Cristian DeFrancia, 'Due Process in International Criminal Courts: Why Procedure Matters', 87 Virginia Law Review 1381, 1399 (2001).