From ‘Common Law’ Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence

Leiden Journal of International Law

Volumn 14, Issue 2, 2001, Pages 367-382

  Mundis, Daryl A ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

civil law; common law; ICTY; procedural reform

Indexed keywords

EID: 85011455982     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000188     Document Type: Article

References (52)

1. G. Kirk McDonald, Trial Procedures and Practice, in G. Kirk McDonald & O. Swaak-Goldman (Eds.), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts 547-622, at 556 (2000).
2. In the seven years since it was established, the ICTY has rendered judgments in twelve cases. See Prosecutor v. Tadić, Opinion and Judgment, Case No. IT-94-1-T, T.Ch. II, 7 May 1997 and Prosecutor v. Tadić, Judgment, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999 and Prosecutor v. Tadić, Sentencing Judgment, Case No. IT-94-1-Tbis-R117, T.Ch. II, 11 November 1999; Prosecutor v. Erdemović, Sentencing Judgment, Case No. IT-96-22-Tbis, T.Ch. IIter, 5 March 1998; Prosecutor v. Delalić and Others, Judgment, Case No. IT-96-21-T, T.Ch. IIquater, 16 November 1998 (hereinafter ‘the Čelebići case’); Prosecutor v. Furund Bija, Judgment, Case No. IT-95-17/1-T, T.Ch. II, 10 December 1998; Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1-T, T.Ch. Ibis, 25 June 1999 and Prosecutor v. Aleksovski, Judgment, Case No. IT-95-14/1-A, Appeals Chamber, 24 March 2000; Prosecutor v. Jelisić, Judgment, Case No. IT-95-10-T, T.Ch. I, 14 December 1999; Prosecutor v. KupreCkić and Others, Judgment, Case No. IT-95-16-T, Judgment, T.Ch. II, 14 January 2000; Prosecutor v. BlaCkić, Judgment, Case No. IT-95-14, 3 March 2000; Prosecutor v. Kunarac and Others, Judgment, Case No. IT-96-23-T & IT-96-23/1-T, 22 February 2001; Prosecutor v. Kordić and Čerkez, Judgment, Case No. IT-95-14/2-T, 26 February 2001; Prosecutor v. Todorović, Sentencing Judgment, Case No. IT-95-9/1-S, 31 July 2001; and Prosecutor v. Krstić, Judgment, Case No. IT-98-33-T, 2 August 2001.
3. The Judges who were interviewed by the Group of Experts established to review the effectiveness of the ICTY and ICTR, see infra, discussion at Section D, “expressed the belief that the prolonged nature of Tribunal proceedings was attributable to a significant degree to not enough control having been exercised over the proceedings by the Judges, and also the manner in which the Prosecution and Defence presented their cases.” See Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal [sic] for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (hereinafter ‘Experts’ Report’), A/54/634 (22 November 1999), para. 77.
4. See McDonald, The Judges who were interviewed by the Group of Experts established to review the effectiveness of the ICTY and ICTR note 3, at 615-620; and ICTY Press Release CC/PIU/333-E, available on the ICTY website: http://www.un.org/icty/pressreal/p333-e.
5. As noted by one commentator, “Judges are at the center of the civil law system.” Philippe Bruno, The Common Law from a Civil Lawyer's Perspective, in R. Danner & M. Bernal, (Eds.), Introduction to Foreign Legal Systems, at 5 (1994). A cautionary note of explanation is in order prior to commencing this examination. Virtually every legal system in the world is a hybrid of both the common law and civil law traditions. That is, there is simply no such thing as a ‘pure’ common law or ‘pure’ civil law jurisdiction. Moreover, among comparative legal scholars there are several criteria for classifying legal systems and contrasting the common law from the civil law. For example, one scholar lists the following methodologies: race and language; culture; content of the substantive law; ideology, philosophy, conceptions of justice and legal technique; historical origins; and juristic style. See P. de Cruz, A Modern Approach to Comparative Law, para. 2.1.3, 29-30 (1993). Moreover, there are wide differences between states within both the common law and civil law worlds and most systems are hybrids of the two main legal traditions. Thus, care must be taken when attempting to make generalizations about any legal system. This analysis uses a basic formula for distinguishing between common law and civil law approaches. As used in this analysis, ‘common law’ refers to a system of criminal justice in which the parties play the primary role in advancing their theory of the case within the context of highly technical rules of evidence. The common law judge largely takes a ‘hands-off’ approach, intervening only to issue rulings on motions filed by the parties or on objections raised by one party to the actions of the other party. By contrast, and as used in this article, ‘civil law’ refers to those legal systems in which the investigating judge (or magistrate) plays a significant role in criminal proceedings, often summoning witnesses and reviewing the dossier containing all the evidence prior to trial. Civil law systems generally have highly technical procedural rules, but few evidentiary rules, reflecting the fact that professional judges, rather than juries, are the triers of fact. Historically, the role of the prosecutor in most civil law jurisdictions was undertaken by an investigating judge or examining magistrate. This individual was empowered both to gather evidence and make the initial finding of guilt or innocence. Some civil law jurisdictions still follow this system. See M. DamaCka, The Faces of Justice and State Authority, at 183 (1986).
6. See Bruno, As noted by one commentator note 9, at 5-7.
7. For example, in France, there are two branches of the judiciary, the ‘sitting judiciary’ (magistrature assise), composed of the examining magistrates and trial judges, and the ‘standing judiciary’ (magistrature debout), the prosecutors. See R. Vogler, Criminal Procedure in France, in J. Hatchard, B. Huber & R. Vogler (Eds.), Comparative Criminal Procedure, section 6.2.1, 62 (1996).
8. See D. Mundis, Improving the Operation and Functioning of the International Criminal Tribunals, 94 AJIL 759-773 (2000).
9. See IT/32, 11 February 1994.
10. See IT/32/Rev. 21, 2 August 2000. See Art. 15 of the Statute of the ICTY empowers the judges to adopt the RPE, while Rule 6 governs the procedural aspects of amending the Rules. note 2.
11. See, e.g., the seventh Annual Report of the ICTY, A/55/273-S/2000/777, 7 August 2000, at inter alia, para. 7: “[T]he Tribunal must find new ways of working that will enable it to try all of the accused within a reasonable time.” See also Address of President Gabrielle Kirk McDonald to the UN General Assembly on 19 November 1998, ad passim.
12. See, e.g., the remarks of Judge Richard May at Fourth Session of the ICC PrepComm released as ICTY Press Release JL/PIS/479-E, available on the ICTY website at http://www.un.org/icty/pressreal/p479-e. The ICTY judges, in conjunction with the prosecutor, are attempting to further refine the Rules to rectify the problem. Under the leadership of President Jorda, the ICTY will hold an annual plenary dedicated exclusively to judicial management issues. See ICTY Press Release CC-JL/PIS/491-E, 18 April 2000 (available at http://www.un.org/icty/pressreal/p491-e) regarding the extraordinary plenary held to discuss the long-term judicial strategy of the ICTY.
13. These amendments were first reflected in Revision 13 of the Rules, which is available on the ICTY website. See the remarks of Judge Richard May at Fourth Session of the ICC PrepComm released as ICTY Press Release JL/PIS/479-E note 2.
14. Rules 65ter, 73bis, 73ter, 74bis, 94bis, and 98ter.
15. Rule 90(H)(i). Similar rules exist in many common law jurisdictions.
16. See Experts’ Report, Case No. IT-98-30/1 note 6, at para. 87.
17. See Prosecutor v. Krnojelac, Motion to Withdraw Article 2 Counts, Case No. IT-97-25-PT, T.Ch. II, 27 October 2000.
18. Krnojelac Transcripts, 26 October 2000.
19. Id. On 27 October 2000, the prosecution filed a motion requesting the withdrawal of the Art. 2 charges. See Id. note 38.
20. Krnojelac Transcripts, 26 October 2000, the prosecution filed a motion requesting the withdrawal of the Art. note 38.
21. Id. This approach is consistent with the Appeals Chamber ruling on the Aleksovski evidentiary appeal. See Prosecutor v. Aleksosvki, Decision on Prosecutor's Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, Decision on Prosecutor's Appeal on Admissibility of Evidence, Appeals Chamber, 16 February 1999. It is also analogous to the approach taken by the Group of Experts who recommend the use of prepared testimony as a means of expediting trials. See, e.g., Experts’ Report, Krnojelac Transcripts note 6, inter alia, para. 88 and Recommendation 12.
22. Krnojelac Transcripts, 26 October 2000, This approach is consistent with the Appeals Chamber ruling on the Aleksovski evidentiary appeal. note 38.
23. See Keraterm Transcripts, 7 June 2000, Unfortunately, these proceedings occurred during a closed session and it is not possible to cite to them. note 37.
24. In so ruling, the Trial Chamber cited to the Tribunal's practice relating to rebuttal evidence, and concluded that in none of the cases, including BlaCkić, did the rebuttal case last more than five days. Kordić Transcripts, 18 October 2000. The Trial Chamber noted that the present trial had begun in April 1999, and had already taken 222 days and at the time of its ruling. The Trial Chamber had heard the testimony of 228 witnesses, including 115 for the prosecution, and 3,213 exhibits had been tendered. The judges concluded that, “Against this background, the Trial Chamber has to bear in mind the duty under the Statute to ensure a fair and expeditious trial. In the Chamber's view, to allow an extensive rebuttal case and evidence would be to contravene that duty.” Kordić Transcripts, 18 October 2000, Case No. IT-95-14/2-T. note 47.
25. GA RES 53/212 (18 December 1998) and GA RES 53/213 (18 December 1998).
26. See GA RES 53/212 note 6.
27. See Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal [sic] for the former Yugoslavia and the International Criminal Tribunal for Rwanda (hereinafter ‘Comments on the Experts’ Report’), A/54/850 (27 April 2000), para. 6. Ann. 1 to this document contains a consolidated point-by-point response of the three organs of both International Tribunals to the Experts’ Report. Ann. 2 contains the prosecutor's general observations regarding the Experts’ Report, while Ann. 3 is the ICTR Registrar's brief comments on the Experts’ Report.
28. The three conditions are: (1) the accused had freely and knowingly consented to trial in absentia; (2) the personal circumstances of the accused, including character and integrity, as well as state guarantees for his appearance and other appropriate conditions were such that the likelihood of his not appearing for trial were minimal; and (3) defence counsel gave a solemn commitment binding themselves to participate in a trial in absentia, should one occur. See Experts’ Report, para. 54 and Recommendation 3.
29. Experts’ Report, The three conditions are: (1) the accused had freely and knowingly consented to trial in absentia; (2) the personal circumstances of the accused, including character and integrity, as well as state guarantees for his appearance and other appropriate conditions were such that the likelihood of his not appearing for trial were minimal; and (3) defence counsel gave a solemn commitment binding themselves to participate in a trial in absentia, should one occur. note 6, at paras. 51-54 and Recommendation 3. In making this recommendation, the experts made reference to several civil law jurisdictions that permit trials in absentia. Id., para. 53. It should be pointed out that even among civil law jurisdictions, only a minority of states employ the trial in absentia procedure.
30. Comments on the Experts’ Report, Experts’ Report note 52, at para. 6.
31. Id., at para. 7.
32. It should be pointed out that in most civil law jurisdictions, there really is not a ‘defence case’ as it exists in the common law. Because the judge(s) largely conduct the proceedings, the defence is not given the opportunity to present a case on its behalf. Rather, it is the duty of the judge(s) to thoroughly raise any exculpatory issues and determine whether they have merit. The role of the defence counsel is limited, to a certain extent, to commenting on the evidence during oral arguments.
33. Experts’ Report, It should be pointed out that in most civil law jurisdictions, there really is not a ‘defence case’ as it exists in the common law. note 6, at para. 89 and Recommendation 13. This proposal is a procedural analogy to the notion of permitting the accused to make a statement prior to the opening of the prosecution case and could also be a tool of narrowing the issues and even impact on the scope of the prosecutor's disclosure obligations. See also n. 13 in the Experts’ Report.
34. Comments on the Experts’ Report, Id. note 52, at para. 62. Moreover, as noted in the Comments of the ICTR, by placing additional restraints on the defence, there is a potential conflict with the principle that the burden of proof lies with the prosecution. Id., at para. 63.
35. Experts’ Report, Comments on the Experts’ Report note 6, at para. 89 and Recommendation 13.
36. Id., at para. 88 and Recommendation 12.
37. Id., at para. 88.
38. Id. and Recommendation 12.
39. With the exception of instances in which Rule 98 is applied. Under this Rule, which has been in force since the original version of the RPE, the Trial Chamber may order either party to produce additional evidence or may proprio motu summon witnesses and order their attendance at the Tribunal.
40. Comments on the Experts’ Report, With the exception of instances in which Rule 98 is applied. note 52, at para. 52.
41. Id., at para. 39. See also, id., at paras. 40-44.
42. Id., at para. 54.
43. See Id. note 37.
44. See Prosecutor v. DoCen and KolundBija, Decision Granting Request for Admission of Documentary Evidence, Case No. IT-95-8-PT, T.Ch. III, 1 August 2000; Prosecutor v. Sikirica, Decision Granting Request for Admission of Documentary Evidence With Respect to DuCko Sikirica, Case No. IT-95-8-PT, T.Ch. III, 22 September 2000; and Prosecutor v. Sikirica, KolundBija and DoCen, Decision Granting Prosecutions Additional Request for Admission of Documentary Evidence, Case No. IT-95-8-PT, T.Ch. III, 20 December 2000. The documents were admitted with the proviso that at trial, the defence may challenge the authenticity of any of the documents that have been admitted, with the prosecution being permitted to deal with any issues relating to authenticity by way of rebuttal. Taken together, these documents, which numbered into the hundreds of pages, filled five large binders.
45. See Letter dated 12 May 2000 from the President of the International Tribunal for the former Yugoslavia addressed to the Secretary General and enclosed report (hereinafter ‘the Jorda Report’), Ann. I to UN Doc. A/55/382-S/2000/865 (14 September 2000). See also ICTY Press Release SB/P.I.S./512-e, available at: http://www.un.org/icty/pressreal/p512-e.htm (which contains an electronic link to the Jorda Report); and Mundis, Case No. IT-96-23 and Case No. IT-96-23/1 note 12.
46. Jorda Report, See Letter dated 12 May 2000 from the President of the International Tribunal for the former Yugoslavia addressed to the Secretary General and enclosed report (hereinafter ‘the Jorda Report’) note 76, at paras. 93-95. The concept of ad litem judges was also addressed in para. 108 and Recommendation 21 of the Experts’ Report, See Letter dated 12 May 2000 from the President of the International Tribunal for the former Yugoslavia addressed to the Secretary General and enclosed report (hereinafter ‘the Jorda Report’) note 6.
47. Such amendments would include simplifying the form of Status Conferences so that they could be held outside of the courtrooms with the senior legal officer presiding and the parties in attendance, with a court deputy taking a record of the proceedings. Jorda Report, Jorda Report note 76, at para. 99.
48. Under the existing Rules, depositions may be taken where it is in the interests of justice to do so, following a request of a party or proprio motu. The Trial Chamber appoints a presiding officer, which can be a senior legal officer, to conduct the deposition. See Rule 71.
49. Jorda Report, Under the existing Rules note 76, at para. 97.
50. Id., at paras. 97-98.
51. Id., at para. 98 and n. 16.
52. Experts’ Report, Id. note 6, at para. 82.