Rules of procedure for the international criminal court: Problems to address in light of the experience of the ad hoc tribunals

Netherlands International Law Review

Volumn 46, Issue 3, 1999, Pages 343-360

  Tochilovsky, Vladimir ^a  

^a Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia   (United States)

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EID: 84998019531     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00002552     Document Type: Article

References (45)

1. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 (hereinafter: Rome Statute).
2. Hereinafter: ICC Rules.
3. Under the fifth resolution of the Conference, this task has been entrusted to a preparatory committee (hereinafter: ICC PrepCom).
4. M.R. DamaSka, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven and London, Yale University Press 1986) p. 3.
5. Hereinafter: ad hoc Tribunals. 7. The simple use of the term Mitigation’ as a synonym for criminal proceeding sounds rather strange to a civil-law lawyer.
6. The reason was rather prosaic. The authors of An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (one of the authors, Virginia Morris, was a member of the drafting committee) explain that of the several states and organisations that submitted comments and draft provisions for the Rules, the United States submitted by far the most comprehensive set of proposed rules with commentary. This proposal was particularly influential because of the timeliness of the submission. Many of the proposals contained in the United States draft ultimately found their way into the rules adopted by the International Tribunal (see V. Morris and M.P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 1 (Irvington-on Hudson, New York, Transnational Publishers 1995) p. 177).
7. H. Jacob, Justice in America: Courts, Lawyers and the Judicial Process (Boston, Little, Brown 1984)p. 190. 10.Prosecutor v. Goran Jelisic, Decision on communication between parties and witnesses, Case No. IT-95-10-T, 11 December 1998, p. 2.
8. Prosecutor v. Kupreskic, Decision on communication between the parties and their witnesses, Case No. IT-95-16-T, 21 September 1998, p. 3.
9. See, for instance, Prosecutor v. Blaskic, Decision of Trial Chamber I to call General Milivoj Petkovic as a witness of the Trial Chamber, Case No. IT-95-14-T, 21 May 1999.
10. It was noted in the first annual report that 'as at Niimberg and Tokyo, there are no technical rules for the admissibility of evidence [at ICTY]. This Tribunal does not need to shackle itself to restrictive rules which have developed out of the ancient trial-by-jury system. There will be no jury sitting at the Tribunal, needing to be shielded from irrelevancies or given guidance as to the weight of the evidence they have heard. The judges will be solely responsible for weighing the probative value of the evidence before them’ (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, A/49/342, 29 August 1994, p. 24).
11. Prosecutor v. Erdemovic; Joint separate opinion of Judge McDonald and Judge Vohrah, Case No. IT-96-22-A, 7 October 1997, pp. 4–5.
12. Plea-bargaining is a negotiation between the prosecution and the defence and is a regular procedure in some common-law systems, such as the United States where 'the prosecution and the defence may engage in discussions with a view toward reaching a plea agreement. Typically, the prosecution offers one or more of the following concessions: (1) a reduction in charge; (2) dismissal of other pending charges; (3) a promise to recommend or not contest a particular sentence or range of sentences.’ (C.H. Whitebread and C. Slobodin, Criminal Procedure: An Analysis of Cases and Concepts (Westbury, New York, The Foundation Press 1993) p. 627).
13. 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, A/49/342,29 August 1994, p. 24. 17. See Prosecutor v. Erdemovic; Sentencing Judgement, Case No. IT-96-22-Tbis, 5 March 1998, pp. 20 – 21. Indeed, the prosecutor has no power to give effect to such an agreement and it certainly does not bind the judge. For instance in this agreement the parties 'in full appreciation of the sole competence of the Trial Chamber to determine the sentence’ recommended that 7 years’ imprisonment would be an appropriate sentence in this case. This agreement was departed from by the judges who imposed a different sentence (5 years’ imprisonment) (see the above Sentencing Judgement, pp. 20–23).
14. In accordance with Art. 65 (Proceedings on an admission of guilt) '[wjhere the Trial Chamber is satisfied that the matters referred to in paragraph I are established, it shall consider the admission of guilt. and may convict the accused of that crime. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may:. order that the trial be continued under the ordinary trial procedures’ (emphasis added).
15. Art. 68. In fact, this Article reproduces wording of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985).
16. In every state on the territory of the former Yugoslavia victims are accustomed to enjoying special procedural rights in criminal proceedings. They have the right to present evidence and to put questions to the accused, witnesses and expert witnesses. Victims may make remarks and present clarification concerning accused and witnesses’ testimony, and also make other statements and proposals. The victim or his attorney refers to the evidence of the criminal responsibility of the accused in his closing statement. Ironically, victims have none of these rights at the Tribunal that was established for the sole purpose of the prosecution of crimes committed against them on the territory of the former Yugoslavia.
17. V. Tochilovsky, 'Victims’ Procedural Rights at Trial: Approach of Continental Europe and the International Tribunal for the Former Yugoslavia’, in J.J.M. van Dijk, et ah, Caring for Crime Victims: Selected Proceedings of the 9th International Symposium on Victimology (Monsey, New York, Criminal Justice Press 1999) pp. 287–291.
18. Here is, for instance, the mechanism proposed by some delegates at the ICC PrepCom: 'When a legal representative [of a victim]. wishes to question a witness, expert or the accused, the legal representative must make application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor, who shall be allowed to make observations. The Chamber shall then issue a ruling on the request. ’ (see Preparatory Commission's document PCNICC/1999AVGRPE/RT.5/ Rev. l, of 11 August 1999, p. 8).
19. Morris and Scharf, Human Rights in the World n. 8, at p. 167. See also M. Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, New York, Transnational Publishers 1996) p. 222.
20. DamaSka, Human Rights in the World n. 5, at p. 201. 25. Pursuant to Art. 54 of the Rome Statute the prosecutor shall 'in order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’ (emphasis added).
21. That is why, for instance, reciprocal discovery obligation by the defence is not an issue in civil-law jurisdictions. The defence counsel is not supposed to conduct an investigation there. If the defence counsel needs, for example, a witness to be interviewed, it will be conducted by a proper investigative body (such as the prosecutor's office, investigative judge, etc.) rather than by the defence counsel itself.
22. Prosecutor v. Kupreskic, Transcript, Case No. IT-95-16-T, 27 August 1998, pp. 1220–1221.
23. Emphasis added. Prosecutor v. Kupreskic, Decision on communication between the parties and their witnesses, Case No. IT-95-16-T, 21 September 1998, p. 3.
24. To be more precise, Art. 58 refers to 'crimes’ rather than 'charges’ ('The warrant of arrest shall contain:. a specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and a concise statement of the facts which are alleged to constitute those crimes’). As an alternative to a warrant of arrest, Art. 58 of the Statute provides for a summon for the person to appear. The summon shall also contain a specific reference to the crimes which the person is alleged to have committed; and a concise statement of the facts which are alleged to constitute the crime.
25. Para. 3 of Art. 58 of the Rome Statute.
26. See para. 6 of Art. 58 of the Rome Statute.
27. In accordance with Art. 61 '[w]ithin a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel’ (emphasis added). It is noteworthy that in contrast to Art. 58 which refers to 'crimes’, Art. 61 refers to confirmation of the 'charges’. 34. Art. 61. At the same time, this Article outlines the scope of such a hearing (emphasis added): 'The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charges.’ Such a threshold will prevent from possible turning such a preliminary hearing into a 'mini-trial’.
28. Commenting on original provision of Rule 47, Bassiouni notices 'thus the suspect, or person to be charged, does not have the opportunity to be heard during this stage of the process. This is generally the case in common-law systems where grand jury proceedings are held in secret’ (Cherif Bassiouni, Human Rights in the World n. 23, at p. 900).
29. The amendment provides that '[t]he reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide.
30. Prosecutor v. Kordic, Cerkez, Order concerning documents transmitted by the Defence to the Judge reviewing the proposed amended indictment, Case No. IT-95-14/2-PT, 27 August 1998, p. 2. A similar position had been taken in this case by the Trial Chamber (see Prosecutor v. Kordic, Cerkez, Prosecutor's response to request for leave to file a supplement to the response in opposition to the Prosecutor's motion for leave to amend the indictment and request for access to the confidential material, Case No. IT-95-16-T, 7 July 1998, p. 3).
31. For the Germans proposal to Art. 44 of the Draft Statute for an International Criminal Court see Report of the Preparatory Committee on the Establishment of an International Criminal Court, Human Rights in the World n. 28, atp. 207. 39. This wording is similar to one in the French law, where a judge is expected to 'take every step which he believes to be necessary to discover the truth’ (Art. 310 of the Code of Criminal Procedure).
32. In accordance with Art. 74, the decision shall containa full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions.
33. 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, A/49/342, 29 August 1994, p. 24.
34. Rule 85 of the ICTY Rules and Rule 85 of the Rwanda Rules. The reaction of a common-law commentator to this rule was quite predictable, 'it is hoped that this provision will not be interpreted as a license for judges to descend pell-mell into the area of trial combat [!] and conduct the questioning of witnesses unrestrained’ (D.D. Ntanda Nsereko, 'Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, 5 Criminal Law Forum (1994) p. 538). 43. Emphasis added. The Prosecutor v. Tadic, Opinion and Judgement, Case No. IT-94-1-T, 7 May 1997, pp. 87–89.
35. Pursuant to amended Rule 90 (GXD 'the Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth.’
36. Emphasis added. Prosecutor v. Delalicet a/., Decision on prosecution's application for leave to appeal pursuant to Rule 73, Case No. IT-96-21-AR73, 16 December 1997, p. 4. It is interesting to note that the trial then continued until October 1998. Such an approach is rather alien for the civil-law proceedings. Speaking, for instance, on 'surprise evidence’, DamaSka remarked 'he [the continental judge] cannot “punish” a party by refusing to hear a surprise witness. Such a ruling would be thought to violate the judge's duty to ascertain the truth’ (M. DamaSka, 'Evidentiary Barriers to Conviction and two Models of Criminal Procedure: A Comparative Study’, 121 U PA. L Rev. (1973) p. 506 at p. 534). 46. Prosecutor v. Tadicy Decision on Appellant's motion for the extension of the time-limit and admission of additional evidence, Case No. IT-94-1-A, 15 October 1998, pp. 14–15.
37. Art. 84.
38. See, for instance, Rule 119 of the ICTY Rules ('Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or. the Prosecutor, may make a motion to that Chamber for review of the judgement’ (emphasis added).
39. Code of Criminal Procedure (StPO), Section 244.
40. M.E. Frankel, 'The Search for Truth: An Umpireal View’, 123 U PA. L Rev. (1975) p. 1042.
41. Prosecutor v. Jean-Paul Akayesu, Decision by the Tribunal on its request to the Prosecutor to submit the written witness statements, Case No. ICTR-96-4-T, 28 January 1997, p. 2.
42. Prosecutor v. Slavko Dokmanovic, Order, Case No. IT-95-13a-PT, 28 November 1997. 53. For instance, the prosecution will not call witnesses whose statements contradict prosecu-tion's version of the event. Subsequently, those statements will not be given to judges. Indeed, the prosecution will have to disclose those statements to the defence. However, the latter is usually quite reluctant to call such witnesses, being afraid that they may change their statements and consolidate prosecution case. As a result, the judges will never know of the existence of such witnesses.
43. ICTY Bulletin, No. 21, 27 July 1998, p. 1.
44. See Rule 73 bis and 73 ter of the ICTY Rules. 56.Prosecutor v. Delalic, Decision on the motion of the joint request of the accused persons regarding the presentation of evidence, dated 24 May 1998, Case No. IT-96-21-T, 12 June 1998, p. 11.
45. One should also be aware of some of the risks of the mere transplantation of incompatible elements into a newly created jurisdiction. For instance, submission to the Trial Chamber of the 'dossier’ the prosecutor compiled in its one-sided investigation, may be misleading and prejudicial to the accused; prosecutor's responsibility for the presentation of his case may conflict with the rights of the victims to intervene in the course of such a presentation.