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Contents
- Preliminary Material
- Foreword
- Preface
- Contents—Summary
- Contents
- Table of Cases
- Table of National Legislation
- Table of Legislation for International Tribunals
- East Timor Special Panel for Serious Crimes (ETSPSC)
- Extraordinary Chambers in the Courts of Cambodia (ECCC)
- International Court of Justice
- International Criminal Court (ICC)
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for Yugoslavia (ICTY)
- International Military Tribunal for the Far East at Tokyo (IMTFE)
- International Military Tribunal at Nuremberg (IMT)
- Iraqi High Tribunal (IHT)
- Special Court for Sierra Leone (SCSL)
- Special Tribunal for Lebanon (STL)
- War Crimes Chamber of the Court of Bosnia and Herzegovina (CtBiH)
- Table of United Nations Legislation
- Table of Treaties and Conventions
- List of Abbreviations
- Main Text
- Introduction
- Part I Antecedents and context of International Criminal Trials
- 1 Principles of Civil Law
- 1 Introduction
- 2 Historical Background of Civil Law Criminal Justice Systems
- 3 Objectives of Criminal Justice
- 4 Fact-finders
- 5 Collection of Evidence
- 6 Presentation of Evidence
- 7 Participation of Civil Parties
- 8 Admissibility of Evidence
- 9 Evaluation of the Evidence
- 10 Appeal
- 11 The Netherlands
- 12 France
- 13 Italy
- 14 General Conclusion
- 2 International Criminal Law and Common Law Rules of Evidence
- 1 Introduction: Common Law, Civil Law, and Rules of Evidence
- 2 The Development of Rules of Evidence in England
- 3 Substantive Overview of the Rules of Evidence
- 4 Are Exclusionary Rules of Evidence Useful in International Criminal Law?
- 3 The Nature and Evolution of the Rules of Procedure and Evidence
- 4 Interpretative Methodologies and the Use of Precedent in Cases Before International Criminal Courts
- 1 Introduction
- 2 Sources of Law and Hierarchy of Norms
- 3 The Vienna Convention on the Law of Treaties
- 4 Resort to Municipal Law Principles of Interpretation
- 5 Judgments of the International Court of Justice
- 6 Judgments of International Human Rights Courts and Bodies
- 7 Judgments of Post World War II Courts and Tribunals
- 8 Principles of Precedent
- 9 Conclusion
- 5 The Changing Context of Evidential Rules
- 1 Principles of Civil Law
- Part II Before the Trial Begins
- 6 Collection of Evidence
- 1 Introduction
- 2 Relationship between Rules on Collection of Evidence and Exclusion of Evidence
- 3 Powers of an International Prosecutor to Collect Evidence
- 3.1 Division of power between international prosecutors and states in collecting evidence
- 3.2 International prosecutor’s power to conduct their own investigation on the territory of states
- 3.3 International prosecutor’s power to collect testimonial evidence
- 3.4 International prosecutor’s power to collect physical evidence
- 3.5 Overview of power-based rules on collection of evidence
- 3.6 Effect of violations of power-based rules on admissibility of evidence
- 4 Rules on Collecting Testimonial Evidence: Witness and Suspect Interviews
- 5 Rules on Collecting Physical Evidence: Searches, Covert Measures, Biometric Data, and Documents
- 6 Conclusion
- 7 Disclosure of Evidence
- 1 Introduction
- 2 Disclosure in National Systems
- 3 Disclosure at the International Tribunals and the Special Court
- 4 Practical Aspects of Disclosure at the International Tribunals and Special Court
- 5 Prosecution Disclosure under Rule 66
- 6 Disclosure of Exculpatory Material under Rule 68
- 7 Defence Disclosure
- 8 Disclosure of Documents to be used in Cross-Examination
- 9 Rule 98 and Orders to Parties to Obtain Evidence
- 10 Exceptions to Disclosure Obligations
- 11 Disclosure at the International Criminal Court
- 12 Approach to Disclosure at the ECCC, IHT, and Special Tribunal for Lebanon
- 13 Conclusion
- 6 Collection of Evidence
- Part III The Trial
- 8 Admissibility of Evidence
- 1 Introduction
- 2 The Common Statutory Framework of the International Criminal Tribunals
- 3 Probative Value
- 3.1 Introduction
- 3.2 Discretion and probative value
- 3.3 Hearsay is not a characteristic precluding admissibility
- 3.4 Witness statements or affidavits as a sub-category of hearsay of particular concern
- 3.5 Codification: Rule 92 bis and ICTY 92 quater
- 3.6 The ambiguous scope of Rule 92 bis and a formal divergence between the ICTY and ICTR
- 3.7 Convergent application of Rule 92 bis at the ICTY and ICTR, and the distinction between testimonial and documentary evidence
- 3.8 Borderline categories: media and police reports
- 3.9 The admissibility of witness statements under the ICC Statute and Rules, and the potential relevance of ICTY and ICTR jurisprudence
- 3.10 The admissibility of suspect interviews
- 3.11 Probative value and proportionality
- 4 Prejudice
- 5 Relevance
- 6 Conclusion
- 9 Documentary Evidence
- 1 Introduction
- 2 Definition of Documentary Evidence
- 3 Admissibility of Documentary Evidence
- 4 Recorded Testimonial Evidence
- 5 Exclusion of Documentary Evidence
- 6 Modalities and Timing of Introducing Documentary Evidence
- 7 Use of Documentary Evidence: Purpose for Admission
- 8 Assessing Weight and Probative Value of Documentary Evidence
- 9 Advantages and Disadvantages of Documentary Evidence
- 10 Rules Governing the Presentation of Testimonial Evidence
- 1 Introduction
- 2 Disclosure of Evidence to Be Used at Trial
- 3 The Order of Examination of Viva Voce Witnesses
- 4 Rules Related to the Status of a Witness
- 4.1 Testimony from the accused
- 4.2 Testimony from witnesses who are suspects or who may incriminate themselves
- 4.3 Expert witnesses
- 4.4 Video-link testimony
- 4.5 Rule 70 at the ICTY and ICTR, and Rule 82 at the ICC
- 4.6 Protected witnesses
- 4.7 Witnesses unable to take or understand the solemn declaration to tell the truth
- 4.8 Mentally impaired or unstable witnesses
- 5 Participation of Victims in Trial Proceedings
- 6 Examination of Witnesses by the Trial Chamber
- 7 Conclusion
- 11 Evidentiary Privileges
- 1 Introduction
- 2 Privilege Defined
- 3 Journalist Privilege
- 4 Privilege of International Organizations and their Staff
- 5 State Secrets Privilege
- 6 Lawyer—Client Privilege
- 7 Communications between Medical Professionals and their Patients
- 8 Communications with Members of a Religious Clergy
- 9 Privilege as Shield
- 10 Conclusion
- 12 Expert Evidence
- 1 Introduction
- 2 International Tribunal Rules
- 3 Voir Dire or In Limine Motion: The Gatekeeping Function
- 4 Qualification of An Expert
- 5 Outside the Scope of Expertise
- 6 On Ultimate Issues of Law or Fact
- 7 Bias
- 8 Reliability as a Preliminary Contention
- 9 Fact or Expert Witnesses
- 10 Need an Expert Testify?
- 11 Reliability
- 12 Access to Sources of Opinion
- 13 Expert’s Methodology
- 14 A Note on Social Scientists as Expert Witnesses
- 15 A Comparative Exercise
- 16 Conclusion
- 13 Reasonable Doubt Standard of Proof in International Criminal Trials
- 1 Introduction
- 2 How is Reasonable Doubt Defined in the International Tribunals?
- 3 What Must be Proved Beyond a Reasonable Doubt Before a Conviction can be Returned?
- 4 The Principle of In Dubio Pro Reo
- 5 The Reasonable Doubt Standard as it Relates to Evaluation of Affirmative Defence Evidence
- 6 The Effect of the Trial Standard of Proof Beyond a Reasonable Doubt on Appellate Standards of Review
- 7 The Propriety of Prosecution Appeals from Acquittals Based Solely on Factual Findings
- 8 Conclusion
- 14 The Standard of Proof in Pre-Trial Proceedings
- 8 Admissibility of Evidence
- Part IV Proof of Facts Other than Through Evidence at Trial
- 15 Judicial Notice
- 16 Additional Evidence on Appeal, Review Proceedings, and the Remedy of Reconsideration
- 1 Additional Evidence on Appeal
- 2 Review
- 3 Reconsideration
- Further Material
