The challenge of an International criminal trial as seen from the bench

Journal of International Criminal Justice

Volumn 5, Issue 2, 2007, Pages 360-376

  Kwon, O Gon ^a  

^a NONE

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EID: 34447622540     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql094     Document Type: Article

References (55)

1. A. Cassese, 'The ICTY: A Living and Vital Reality', 2 Journal of International Criminal Justice (2004) 585, at 595.
2. SC Res. 1534 (2004), §2.
3. See 'Key Figures of ICTY Cases' on http://www.un.org/icty/cases-e/ index-e.htm (visited 1 August 2006).
4. Report on the Operation of the International Criminal Tribunal for the former Yugoslavia, UN Doc. A/55/382-S 2000/865, Annex I (2000), §35.
5. SC Res. 1534 (2004), §3.
6. Judgment, Hadžihasanović and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006;
7. and Judgment, Orić (IT-03-68-T), Trial Chamber, 30 June 2006.
8. SC Res. 1534 (2004), §5.
9. Rule 85(A) of the Rules.
10. See Decision on Prosecutor's Appeal on Admissibility of Evidence, Aleksovski (IT-95-14/1-AR73), 16 February 1999. §15. The Braanin Trial Chamber observed in its Judgment that 'it is well settled in the practice and jurisprudence of this Tribunal that hearsay evidence is admissible' to prove the truth its contents, but that the weight or probative value of hearsay evidence 'will usually be less' than live testimony in which the witness is subject to cross-examination.
11. Judgment, Braanin (IT-99-36-T), Trial Chamber, 1 September 2004, §28.
12. Former Rule 90(A) (deleted in December 2000) (emphasis added).
13. See Decision on Prosecution's Request to Have Written Statements Admitted under Rule 92bis, Milošević (IT-02-54-T), Trial Chamber, 21 March 2002, §30.
14. Ibid., Declaration of Judge O-Gon Kwon, §2.
15. See Decision on Interlocutory Appeal Concerning Rule 92bis(C), Galić (IT-98-29-AR73.2), Appeals Chamber, 7 June 2002, §31.
16. Decision on Prosecution Motion for the Admission of Evidence-in-Chief of Its Witnesses in Writing. Milošević (IT-02-54-T), Trial Chamber, 16 April 2003, at 2.
17. Ibid., Dissenting Opinion of Judge O-Gon Kwon, §4.
18. Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), Appeals Chamber, 30 September 2003, §21.
19. See e.g. Decision on the Prosecutions Motions to Admit Prior Statements as Substantive Evidence, Limaj, Bala, and Musliu (IT-03-66-T), Trial Chamber, 25 April 2005, §18.
20. See also Decision on Prosecution's Motions for Admission of Statement of Witness Milan Babić, Martić (IT-95-11-T). Trial Chamber, 10 February 2006.
21. Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, Rule 92bis was amended and a new rule - Rule 92ter - was added. Rule 92bis was made substantially shorter, deleting the portion allowing the Trial Chamber to order the cross-examination of a witness whose written statement has been admitted into evidence under the rule. Rule 92ter was intended to take the place of Rule 89(F), and covers situations in which the witness' written statement is admitted into evidence but the witness is called for cross-examination. Under Rule 92ter the witness statement may go to the acts and conduct of the accused, but only if the three conditions from the September 2003 Milošević appeal decision are fulfilled: The witness must be present in court; he must be available for cross-examination and any questioning by the judges; and he must attest that the written statement accurately reflects his declaration and what he would say if examined. These amendments bring the rules on the admission of written evidence substantially in line with my views: Rule 92bis is only to be used where the written evidence does not go to the acts and conduct of the accused and where the witness does not appear in court, with Rule 92ter being used in lieu of Rule 92bis in other situations - that is, if the witness appears in court for cross-examination or partial examination-in-chief, or if his statement goes to the acts and conduct of the accused. See Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, UN Doc. IT/32/Rev. 39 (2006), Rules 92bis and 92ter (hereinafter 'New Rules').
22. See e.g. Decision on Prosecution Motions for the Admission of Witness Statements Pursuant to Rule 89(F) and Protective Measures for Witnesses B-1770 and B-1619, Milošević (IT-02-54-T), Trial Chamber, 9 December 2003;
23. Decision on Prosecution Application under Rule 89(F) to Admit the Statement of Witnesses Hrvoje Sarinić in Evidence, Milošević (IT-02-54-T), Trial Chamber, 18 December 2003;
24. Decision on Prosecution Motion for Admission of a Summary of the Testimony ot Witnesses B-1489 Pursuant to Rule 89(F), Milošević (IT-02-54-T), Trial Chamber, 12 January 2004;
25. Decision on Confidential Prosecution Motion for Admission of a Transcript and Statement Pursuant to Rules 92bis(D) and 89(F) for Witness B-1805, Milošević (IT-02-54-T), Trial Chamber 12 January 2004;
26. Decision on Prosecution Application under Rule 89(F) to receive the Evidence-in-Chief of Witnesses Diego Arria in Written Form, Milošević (IT-02-54-T), Trial Chamber, 23 January 2004.
27. Decision in Relation to Severance, Extension of Time and Rest, Milošević (IT-02-54-T), Trial Chamber, 12 December 2005, §20.
28. Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, Rule 66(A)(ii) was amended to make explicit reference to Rule 92ter which, as described in note 18 above, was inserted in the same revision of the Rules and effectively serves the function formerly served by Rule 89(F). Accordingly, a Trial Chamber or a pre-trial judge can now order the Prosecutor to disclose not only Rule 92bis statements and other witness statements, but also Rule 92ter statements, in advance of trial. See New Rules, supra note 18, Rule 66(A)(ii).
29. See Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice Karemera, Ngirumpatse, and Nzirorera (ICTR-98-44-AR73(C)), Appeals Chamber, 16 June 2006, §42.
30. See e.g. Allen v. McCurry, 449 US 90 (1980).
31. Ibid.
32. See Ibid.: Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts pursuant to Rules 94 and 54, Semanza (ICTR-97-20-T), Trial Chamber, 3 November 2000, §20.
33. Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses pursuant to Rule 92bis, Krajišnik (IT-00-39-T), Trial Chamber, 28 February 2003, §11.
34. P. 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 (2001) 87, at 111.
35. Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, Karemera, Ngirumpatse, and Nzirorera, supra note 20, § 51-52.
36. Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, Simić, Simić, Tadić, Todorović, and Zarić (IT-95-9-PT), Trial Chamber, 25 March 1999, at 4.
37. Decisions on Prosecution's Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brčko, Milošević (IT-02-54-T), Trial Chamber, 5 June 2002, at. 3-4.
38. Decision on Prosecution Motions tor Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses pursuant to Rule 92bis, Krajišnik, supra note 26, §16.
39. Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), Trial Chamber, 10 April 2003, at 4.
40. Decision on the Prosecution's Interlocutory Appeal Against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-AR73.5), Appeals Chamber, 28 October 2003, at 4.
41. Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, Milošević (IT-02-54-T), Trial Chamber, 16 December 2003, § 11-12.
42. Shortly after the September 2006 Beijing conference at which I delivered the speech that resulted in this article, the Trial Chamber rendered its decision on this motion, comprehensively discussing and developing the law on judicial notice of adjudicated facts, and ultimately denying judicial notice to more than half of the 534 proposed facts. See Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex. Popović and others (IT-05-88-T), Trial Chamber, 26 September 2006.
43. Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, Karemera, Ngirumpatse, and Nzirorera, supra note 22, § 35.
44. Decision in Relation to Severance, Extension of Time and Rest, Milošević, supra note 20.
45. I. Bonomy, 'The Reality of Conducting a War Crimes Trial', speech delivered at ETHICS regional workshop for Europe, Riga, Latvia on 8 June 2006, published in this issue.
46. Final Report of the Working Group on Speeding Up Trials, 13 February 2006, at 5.
47. Ibid., at 13.
48. Decision on Application of Rule 73bis, Milutinović and others (IT-05-87-T), Trial Chamber, 11 July 2006, §13.
49. Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Šešelj (IT-03-67-PT), Trial Chamber, 31 August 2006, at 2. There have been several developments at the Tribunal in relation to Rule 73 bis since the September 2006 Beijing conference at which I delivered the speech that resulted in this article.
50. In Šešelj, for example, the prosecution emphatically declined the Chamber's invitation to reduce the scope of the indictment, contending that the diversity of Šešelj's alleged conduct justified keeping the full indictment. Prosecution's Response to Trial Chamber's 'Request to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment', Šešelj (IT-03-67-PT), 12 September 2006, § 3, 28.
51. In response, the Trial Chamber insisted that the scope of the indictment be reduced. The prosecution reluctantly proposed to drop certain counts and not to present evidence on certain crime sites; the Chamber accepted this proposal, and also ordered that evidence relating to a further series of crime sites not be presented. See Decision on the Application of Rule 73 bis, Šešelj (IT-03-67-PT), 8 November 2006.
52. Furthermore, in both the Perišić and Dragomir Milošević cases, the Trial Chamber also invited the prosecution - again under the newly amended part of Rule 73 bis - to reduce the scope of the indictment. See Invitation to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Perišić (IT-04-81-PT), 20 November 2006, at 2;
53. Scheduling Order Varying Time-Limits with Regard to the Commencement of Trial and Request to Prosecution to Reduce the Scope of Its Case, Dragomir Milošević (IT-98-29/1-PT), 23 November 2006, at 3.
54. The prosecution declined the invitation, citing policy reasons and invoking the independence of the Prosecutor; but it also noted that, if ordered to reduce the indictment, it would eliminate certain counts, and it suggested which counts could be eliminated. See Prosecution's Response to the Trial Chamber's Invitation to the Prosecutor to Make Proposals to Reduce the Scope of the Indictment, Perišić (IT-04-81-PT), 4 December 2006;
55. Prosecution's Response to Pre-Trial Chamber's 'Invitation to Prosecution to Reduce the Scope of Its Case', Dragomir Milošević (IT-98-29/1-PT), 5 December 2006.