Creating laws of evidence for international criminal law: The ICTY and the principle of flexibility

Criminal Law Forum

Volumn 12, Issue 1, 2001, Pages 41-90

  Boas, Gideon ^a,b,c  

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

^b MONASH UNIVERSITY   (Australia)

^c UNIVERSITY OF MELBOURNE   (Australia)

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EID: 52549102500     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1011664931414     Document Type: Article

References (162)

1. R. May & M. Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 COLUMBIA J. TRANSNAT'L L. 727 (1999), at 745.
2. U.N. Doc. IT/32, as amended. The Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR) mirror almost exactly those of the ICTY. Amendments made to the Rules of the ICTR often (although certainly not always) follow directly amendments made to the Rules of the ICTY. The Rules of the ICTR will not be discussed in any depth in this article, not because the evolving procedure and jurisprudence of the ICTR is not important but for the reason that the article is already of a depth that there is insufficient space for such a discussion.
3. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9;
4. Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/INF/3/Add.1, July 12, 2000 (officially, the "finalised draft text", awaiting formal adoption by the Assembly of States Parties after the ICC Statute comes into force).
5. Rule 66 requires extensive disclosure and Rule 68 provides for disclosure of exculpatory evidence.
6. Rule 42.
7. Rule 78.
8. Rule 85.
9. Rules 62 and 87.
10. Rule 90.
11. 10 U.N. Doc. S/RES/827, annex. 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that 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. 2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the international tribunal, be taken into custody, immediately informed of the charges against him and transferred to the international tribunal. 3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial. 4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
12. Prosec utor v. Blaskic (Case No. IT-95-14), Decision on the Defence Motion for Protective Measures for Witnesses D/H and D/I, Sept. 25, 1998: "CONSIDERING that the Trial Chamber must ensure that the trial is fair and expeditious, CONSIDERING that, in the view of establishing the truth, this principle requires that there be no excessive infringement on [sic] the rights of the Prosecution, inter alia, the right to conduct an effective cross-examination of the Defence witnesses ..."
13. Prosecutor v. Tadic (Case No. IT-94-1), Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Aug. 10, 1995, paras. 32-33.
14. See, for example, Christine M. Chinkin, Women: The Forgotten Victims of Armed Conflict? in THE CHANGING FACE OF CONFLICT AND THE EFFICACY OF INTERNATIONAL HUMANITARIAN LAW 32-34 (H. Durham & T.L.H. McCormack, eds., 1999);
15. Christopher L. Blakesley, Atrocity and Its Prosecution: The Ad Hoc Tribunals for the Former Yugoslavia and Rwanda in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES 220-224 (T.L.H. McCormack & G.J. Simpson, eds., 1997);
16. Christine M. Chinkin, Due Process and Witness Anonymity, 91 AM. J. INT'L L. 75 (1997);
17. Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AM. J. INT'L L. 235 (1996);
18. Natasha A. Affolder, Tadic, the Anonymous Witness and the Sources of International Procedural Law, 19 MICHIGAN J. INT'L L. 445, (1998).
19. Prosecutor v. Tadic (Case no. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, para. 46.
20. Prosecutor v. Tadic, supra note 13, paras. 32-33.
21. Ibid., para. 36.
22. Prosecutor v. Tadic (Case No. IT-94-1), Separate Opinion of Judge Stephen on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Aug. 10, 1995.
23. Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Decision on the Applications for Adjournment of the Trial Date, Feb. 3, 1997, para. 19.
24. Prosecutor v. Kordić and Ćerkez (Case No. IT-95-14/2-T), Decision on the Prosecutor's Motion to hold pre-trial motions in abeyance, Jan. 28, 1998.
25. Prosecutor v. Dokmanović (Case No. IT-95-13a), Scheduling Order, Nov. 20, 1997. The same device of seeking formal admissions was employed in Prosecutor v. Dokmanović (Case No. IT-95-13a), Decision on Pre-Trial Motions, Jan. 21, 1998; Prosecutor v. Kovacević (Case No. IT-97-24), Scheduling Order, Mar. 5, 1998; and Prosecutor v. Aleksovski (Case No. IT-95-14/1), Scheduling Order, Dec. 3, 1997.
26. See Rule 73 bis (B) (i)(ii) and (iii) and (F), and Rule 73 ter (B) (i) and (ii) prior to their amendment at the twenty-first plenary in November 1999 (U.N. Doc. IT/32/Rev. 16).
27. Oral ruling made on November 28, 1997. The same approach was taken by Trial Chamber I in the Aleksovski case, supra note 20.
28. Prosecutor v. Tadic (Case No. IT-94-1), Prosecution Motion for Production of Defence Witness Statements, Separate Opinion of Judge Vohrah, Nov. 27, 1996.
29. Ibid., pp. 4, 7.
30. Prosecutor v. Tadic (Case No. IT-94-1), Prosecution Motion for Production of Defence Witness Statements, Separate and Dissenting Opinion of Judge McDonald, Nov. 27, 1996, para. 32.
31. Prosecutor v. Delalić et al. (Case No. IT-96-21-T), Decision on the Prosecutor's Motion for an Order requiring Advance Disclosure of Witnesses by the Defence, Feb. 4, 1998, para. 49.
32. Prosecutor v. Aleksovski (Case No. IT-95-95-14/1-AR73), Decision on Prosecutor's Appeal on Admissibility of Evidence, Feb. 16, 1999, para. 25 (footnote omitted).
33. Prosecutor v. Delalić et al. (Case No. IT-96-21-T), Decision On The Motion To Allow Witnesses K, L And M To Give Their Testimony By Means Of Video-Link Conference, May 28, 1997, para. 15.
34. Ibid., para. 14. "[T]here are exceptions to the general rule where the right of the accused under Article 21(4)(e) is not prejudicially affected."
35. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-AR73.5), Decision on Appeal Regarding Statement of a Deceased Witness, July 21, 2000, para. 19: deposition evidence under Rule 71; testimony via video-link under Rule 71 bis; expert witness statements under Rule 94 bis; and affidavit evidence under (now deleted) Rule 94 ter.
36. The Rules are amended by agreement of not less than nine judges sitting in plenary (Rule 6(A)). The procedure for proposal and consideration of amendments to the Rules is set out in the "Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the International Tribunal", U.N. Doc. IT/143, (Dec. 18, 1999). This document is reflected in Rule 6(C) of the Rules.
37. For a discussion of the creation of the ICTY, see generally: Paul Tavernier, The Experience of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, 321 INT'L REV. RED CROSS 605 (1997)
38. . Some commentators consider the creation of the ICTY under Chapter VII of the Charter of the United Nations may be an unlawful exercise of the Security Council's powers. See, for example, V. Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 INT'L CRIM. L. Q. 55 (1994);
39. Gabriel H. Oosthuizen, Playing Devil's Advocate: the United Nations Security Council is Unbound by Law, 12 LEIDEN J. INT'L L. 549 (1999).
40. "The anomalies of the International Criminal Tribunal are legion" (letter), THE TIMES, June 17, 1999.
41. There are limitations on the discretion of Trial Chambers in the admission of evidence, particularly evidence which has been found to be inherently unreliable and therefore incapable of admission in trial proceedings. See, for example, two recent decisions of the Appeals Chamber: Prosecutor v. Kordić and Čerkez, supra note 30; 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, Sept. 18, 2000.
42. 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, July 29, 1999, parea. 12
43. Prosecutor v. Tadic (Case No. IT-94-1), Prosecution Motion for Production of Defence Witness Statements, Separate Opinion of Judge Stephen, Nov. 27, 1996, p. 6. As an example of the application of general principles, in the same case the Trial Chamber found that there was "no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by this international tribunal", paras. 535-539. This reasoning was followed in Prosecutor v. Delalić et al. (Case no. IT-96-21-T), Judgment, Nov. 16, 1998, para. 594.
44. R. May & M. Wierda, supra note 1, p. 745.
45. Ibid.
46. Dissenting opinion of Justice Pal (July 25, 1946), reprinted in 2 THE TOKYO JUDGMENT: THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST, 29 APRIL 1946-12 NOVEMBER 1948 639 (B.V.A. Roling & CF. Rüter, eds., 1977).
47. Trial of the Major War Criminals, Vol. 2 (1946), pp. 172-173.
48. SIR RUPERT CROSS & C. TAPPER, CROSS ON EVIDENCE 38 (6th ed., 1985).
49. Prosecutor v. Aleksovski, supra note 28, para. 27.
50. Prosecutor v. Tadic (Case No. IT-94-1), Decision on the Defence Motion on Hearsay, Aug. 7, 1996, para. 7.
51. Ibid., paras. 15-19.
52. Ibid., para. 18.
53. Prosecutor v. Tadic (Case No. IT-94-1), Separate Opinion of Judge Stephen, Aug. 7, 1996, p. 4. Indeed, in a recent decision of the Appeals Chamber, the admission of a statement of a deceased witness by Trial Chamber III was overturned on the basis that it was "so lacking in terms of the indicia of reliability that that it [was] not 'probative'" and was therefore inadmissible: Prosecutor v. Kordić and Čerkez, supra note 30, para. 24.
54. Prosecutor v. Kordić and Čerkez (Case no. IT 95-14/2 T) Transcript, July 29, 1999, pp. 5676-5685 (emphasis added).
55. Prosecutor v. Aleksovski, supra note 27, para. 27.
56. Prosecutor v. Kordić and Čerkez, supra note 35, para. 27.
57. Ibid., para. 28 (emphasis added).
58. Prosecutor v. Blaskic (Case no. IT-95-14-T), Opinion Further to the Decision of the Trial Chamber Seized of the Case the Prosecutor v. Dario Kordić and Mario Čerkez dated 12 November 1998, Dec. 16, 1998, p. 5.
59. Prosecutor v. Delalić et al. (Case No. IT-96-21-T), Decision on the Prosecutor's Oral Requests for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused, Zdravko Mucic, to provide a handwriting sample, Jan. 19, 1998.
60. Ibid., para. 32.
61. This was affirmed by the same Chamber ruling in Prosecutor v. Delalić et al. (Case No. IT-96-21-T), Decision on the Motion of the Prosecution for the Admissibility of Evidence, Jan. 19, 1998, para. 19.
62. For a commentary on this aspect of the ICC Statute and Rules, see generally, G. Boas, Comparing the ICTY and the ICC: Some Procedural and Substantive Issues, 8 NETHERLANDS INT'L L. REV. 267 (2000), at pp. 280-281.
63. Prosecutor v. Kordić and Čerkez, supra note 30, para. 24.
64. R. May & M. Wierda, supra note 1, p. 755.
65. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2), Registry Page 5091.
66. Ibid., Registry Pages 5090-5045.
67. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, June 3, 1999, p. 3237.
68. The Rule was subsequently amended and the relevant provisions are now contained in Rule 65 ter (E)(iv) (powers of the pre-trial judge) and Rule 73 bis.
69. Rule 73 bis (B) at the time read: (B) At the Pre-Trial Conference the Trial Chamber may order that the Prosecutor, within a time-limit set by the Trial Chamber, and before the date set for trial, file the following: (i) A pre-trial brief addressing the factual and legal issues; (ii) Admissions by the parties and a statement of other matters which are not in dispute; (iii) A statement of contested matters of fact and law; (iv) A list of witnesses the Prosecutor intends to call with: (a) the name or pseudonym of each witness; (b) a summary of the facts on which each witness will testify; (c) the points in the indictment as to which each witness will testify; and (d) the estimated length of time required for each witness ...
70. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2-AR73(B)), Prosecutor's Application for Leave to Appeal the Trial Chamber's Oral Decision Rejecting the Prosecutor's Application to Add Witnesses to the Witness List, June 10, 1999.
71. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transe ript, Aug. 5, 1999, p. 6405. The defence adopted the same procedure in the running of its cases in chief.
72. Ibid., p. 6422.
73. Prosecutor v. Kordić and Čerkez, supra note 35, para. 7. The investigator, Mr Raatikainen, is hereafter referred to as "the investigator".
74. As mentioned above, Rule 90(F) was at the time Rule 90(G).
75. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Argument for Procedural Possibilities, June 3, 1999, p. 3.
76. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, June 19, 1999, p. 4905.
77. Prosecutor v. Kordić and Čerkez, supra note 36, para. 10. The Prosecution went on to submit in the Kordić case numerous "village binders" containing grouped evidence of atrocities allegedly committed in central Bosnia during the conflict there.
78. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, June 19, 1999, pp. 4882-4918.
79. Ibid., pp. 4880-4881. Also, supra note 69.
80. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Kordić Response, para. 1.
81. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, June 17, 1999, p. 4129.
82. Deleted at the twenty-third session of the plenary. The principle has been replaced by a more flexible principle regarding the nature of evidence to be received by Trial Chambers (see below, discussion concerning new Rule 89 (F)).
83. Prosecutor v. Kordić and Čerkez, supra note 36, paras. 13-14 (references omitted).
84. See the cases of Barbera, Messegue and Javardo v. Spain, Dec. 6, 1988, Series A, No. 146, (1988) 11 E.H.R.R. 360; Unterpertinger v. Austria, Nov. 24, 1986, Series A, No. 110, (1991) 13 E.H.R.R. 175; and Bricmont v. Belgium, July 7, 1989, Series A, No. 158, (1990) 12 E.H.R.R. 217.
85. See generally, STEPHANOS STAVROS, THE GUARANTEE FOR ACCUSED PERSONS UNDER ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: AN ANALYSIS OF THE APPLICATION OF THE CONVENTION AND A COMPARISON WITH OTHER INSTRUMENTS 230-236 (1993).
86. STEPHANOS STAVROS, THE GUARANTEE FOR ACCUSED PERSONS UNDER ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: AN ANALYSIS OF THE APPLICATION OF THE CONVENTION AND A COMPARISON WITH OTHER INSTRUMENTS Ibid., 231.
87. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Oral ruling, Transcript, July 6, 1998, p. 69.
88. Ibid., 61.
89. Prosecutor v. Kordić and Čerkez, supra note 36, footnote 17.
90. Ibid., para. 19. In doing so the Trial Chamber referred to Prosecutor v. Aleksovski, supra note 27.
91. Ibid., para. 20.
92. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, July 19, 1999, p. 4880.
93. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Kordić Response, pp. 2-3.
94. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, June 19, 1999, p. 4868.
95. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Kordić Response, pp. 54-56; Čerkez Response, pp. 2-4.
96. Prosecutor v. Aleksovski, supra note 27, para. 27.
97. Ibid., para. 28. See above with respect to the hearsay aspects of this evidence.
98. See the views expressed by the Appeals Chamber in Prosecutor v. Kordić and Čerkez, supra note 30, and 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, Sept. 18, 2000.
99. Article 29 of the Statute.
100. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Decision on Prosecutor's Submissions Concerning "Zagreb Exhibits" and Presidential Transcripts, Dec. 1, 2000, para. 3.
101. Described as a "Book of Observations of the Officer on Duty in the Central Bosnia Operative Zone", ibid, para. 26.
102. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, Nov. 21, 2000, pp. 27358-27359. Set out in Prosecutor v. Kordić and Čerkez, supra note 98, para. 36.
103. By contrast, it is the States parties, through the Assembly, that adopt the rules of the International Criminal Court. The judges can amend them only in specific urgent circumstances. See article 51 of the ICC Statute. For a comparison of the two amending procedures, see G. Boas, supra note 55, pp. 270-279.
104. "Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)", U.N. Doc. S/25704, May 3, 1993, para. 83.
105. "Yearbook of the ICTY" (1994), para. 53.
106. Yearbook of the ICTY" (1994), Ibid., para. 55.
107. On the basis of these rules, the tribunals under Control Council Law no. 10 later adopted the Uniform Rules of Procedure. See International Military Tribunal, Rules of Procedure, adopted October 29, 1945 in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. 1 (1946-1949), pp. 19-23.
108. R. May & M. Wierda, supra note 1, p. 729.
109. Charter of the International Military Tribunal for the Far East, article 13, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20 (as amended April 26, 1946, 4 Bevans 27).
110. See Rules of Procedure of the International Military Tribunal for the Far East, reprinted in The Tokyo War Crimes Trials (R. John Pritch ard & Sonia Magban au Zaide, eds., 1981).
111. This and other amendments to the Rules made at the twenty-third plenary session entered into force on Jan. 19, 2001, seven days after the filing of IT/184 and in accordance with Rule 6(D).
112. Prosecutor v. Kordić and Čerkez, supra note 30, para. 19.
113. Prosecutor v. Kuprepkic et al. (Case No. IT-95-16-AR73.3), Decision on Appeal by Dragan Papic Against Ruling to Proceed by Deposition, July 15, 1999, paras. 18-19.
114. Sixth 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/54/187, S/1998/846, Aug. 25, 1999, para. 116.
115. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Transcript, Mar. 10, 2000, p. 16489.
116. Ibid., May 19, 2000, p. 19139.
117. Ibid., May 18, 2000, p. 19092 and Rule 94 ter.
118. Ibid., May 19, 2000, p. 19130.
119. Ibid., p. 19092.
120. Ibid., p. 19091.
121. Ibid., May 19, 2000, p. 19139.
122. Ibid., p. 19134.
123. Ibid., June 9, 2000, p. 20839.
124. Ibid., May 19, 2000, p. 19140.
125. Ibid., pp. 19140-19141.
126. Ibid., May 31, 2000, pp. 19918-19924.
127. Ibid, July 20, 2000, pp. 22977-22894.
128. Ibid, May 31, 2000, pp. 19893-19894.
129. 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, Sept. 18, 2000, para. 26 and generally.
130. Ibid., para. 24.
131. Ibid., para. 25.
132. Ibid. Also supra note 112, para. 116.
133. Rule 94 deals with judicial notice and reads: (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.
134. U.N. Doc. S/RES/808 (1993) and U.N. Doc. S/RES/827 (1993).
135. Prosecutor v. Kordić and Čerkez, supra note 30, para. 22.
136. (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and (a) the declaration is witnessed by: (i) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or (ii) a Presiding Officer appointed by the Registrar of the international tribunal for that purpose; and (b) the person witnessing the declaration verifies in writing: (i) that the person making the statement is the person identified in the said statement; (ii) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct; (iii) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (iv) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber.
137. Prosecutor v. Kordić and Čerkez (Case No. IT-95-14/2 T), Oral ruling, Feb. 18, 2000, Transcript, pp. 14612-14621.
138. Prosecutor v. Kordić and Čerkez, supra note 128, para. 36.
139. Ibid., para. 32.
140. Prosecutor v. Kuprepkic et al. (Case No. IT-95-16-AR73.3), Decision on Appeal by Dragan Papic Against Ruling to Proceed by Deposition, Separate Opinion of Judge Hunt, July 15, 1999, para. 18.
141. Under Article 67(1 )(h) of the ICC Statute, the accused has the right to "make an unsworn oral or written statement in his or her defence". Neither this provision nor anything in the Rules gives any indication of the type of unsworn statement provided for, nor whether the accused may only give unsworn testimony or whether he or she may elect to take the solemn declaration and give sworn testimony. The Statute and the Rules are silent on what happens if such an election is available to an accused person.
142. Emphasis added.
143. COMPARATIVE CRIMINAL PROCEDURE 71 (J. Hatchard, B. Huber & R. Vogler, eds., 1996).
144. COMPARATIVE CRIMINAL PROCEDURE Ibid., p. 72.
145. COMPARATIVE CRIMINAL PROCEDURE p. 72. Ibid.
146. COMPARATIVE CRIMINAL PROCEDURE Ibid. Code de procédure pénale, arts. 328, 442 and 536.
147. COMPARATIVE CRIMINAL PROCEDURE Ibid., p. 144. Basic Law/GG, art. 103(I).
148. COMPARATIVE CRIMINAL PROCEDURE Ibid., p. 145.
149. COMPARATIVE CRIMINAL PROCEDURE Ibid, p. 153.
150. CIbid., p. 234.
151. Codice di Procedura Penale, art. 493.
152. See L.J. Fassler, The Italian Penal Procedure Code, 29 COLUMBIA J. TRANSNAT'L L. 245, 269 (1991).
153. Codice di Procedura Penale, art. 494.
154. W. Pizzi & L. Marafioti, The New Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INT'L L. 8 (1992).
155. CRIMINAL PROCEDURE SYSTEMS IN THE EUROPEAN COMMUNITY 249 (Christine van den Wyngaert, ed., 1993).
156. J.F. ARCHBOLD, CRIMINAL PLEADING, EVIDENCE AND PRACTICE paras. 4-324 (1995).
157. The ICC Statute creates a Pre-Trial Chamber (article 39) with far greater powers of control over not only the pre-trial phase of proceedings, but also over whether an investigation is even to commence (see article 15, in which the Chamber decides whether to authorise an investigation).
158. Rule 65 ter (A).
159. It is noteworthy that with amendments to the Statute to provide for ad litem judges to be utilised by the ICTY so as to increase its capacity to hear cases (see U.N. Doc. S/RES/1131 (2000), amending the Statute of the ICTY), the role of the pre-trial judge becomes of paramount importance. Strangely, article 13 quaterl(b)(iv) forbids the ad litem judges who will sit on a trial "to adjudicate in pre-trial proceedings". This means that ad litem judges who are appointed to hear a case will have been forbidden from being involved in the pre-trial stage of the proceedings. Given that most of the rules regulating filings of the parties for the purpose of expedition (including the pre-trial briefs, narrowing of the number of witnesses, disclosure etc.) are in this category, these judges will either be stuck with decisions which were made concerning the management of their trial or they will call for a voir dire in which they will re-visit all of the pre-trial work with which they are dissatisfied. Either way, it would appear that the amendment is a procedural error and one which does not contribute to the purpose of the amendments: the expedition of trials.
160. For example, Criminal Procedure and Investigations Act 1996 (United Kingdom), ss. 3-5.
161. Rule 73 ter (B)(iii), prior to its amendment.
162. Supra note 33.