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Oxford Law Citator

8 The Trial

From: International Criminal Procedure

Christoph Safferling

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Published in print:: 15 March 2012

ISBN:: 9780199562886

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Subject(s):: International criminal law — International criminal law, victims — International procedural law — Evidence — Judgments — Human rights — Right to fair trial

(p. 378) 8 The Trial

The trial is the core of the entire prosecution process. At its end, the question of the individual criminal responsibility of the accused will be answered and the amount of punishment—upon a guilty verdict—will be determined. The rules for the procedure, which will in the end lead to the answer, vary greatly according to national legal systems. They depend heavily on the cultural heritage and the socio-historical circumstances. As we have seen, international criminal procedure has no such basis to rely upon, so it must be construed in such a way that is acceptable to world society, and to the societies particularly affected by international criminal trials.

The legal framework for the trial before the ICC is marked by Arts 62-76, which constitute Part VI of the Rome Statute headed ‘The trial’. These articles are accompanied by Rules 131-144 RPE ICC of Chapter 6: Trial procedure. It is interesting to note that despite the fact that the trial is the core of the entire proceedings, its normative framework is somewhat limited, and much is left to be decided by the judges in the course of the process.

Before entering into a discussion of the course of the procedure in detail, it is thus necessary to establish a set of principles, derived from human rights law, as a yardstick for the structure of the trial (below, A). We will then look at how the trial is prepared (B) and how it is conducted (C). The rules concerning evidence will be discussed separately (D), as they establish the backbone of the verdict, which will then be addressed (F). In between (E) a summary is provided concerning witness protection. At the end of this chapter we will take another look at victim participation at this stage (G).

A. Principles of the Trial

More than any other area of the law, it seems, criminal procedure is dominated by principles.¹ This is certainly the case for German criminal procedure, where every (p. 379) book on the subject must elaborate on these principles, which are often called Prozessmaximen.² In some regards the situation in US law is similar as constitutional rights, for example, the due process clause in the Fourteenth Amendment, heavily influence the criminal procedure.³ From an international perspective, these maxims are mostly interrelated with human rights law. These rights and principles influence the entire prosecution process as we have already seen in the previous stages of this study. Yet the trial is the place, where all other measures and previous proceedings appear as preliminary stages with the sole purpose to prepare the main hearing concerning the guilt of the accused person. This is why the principles of the trial must materialize at this stage in a particular way, when all preparatory means are being tested, weighed, and evaluated as to whether they will legitimize the conviction and punishment. It has been said that these principles are somewhat academic and indeed are observed by experienced judges instinctively.⁴ With all due respect, this is rather dangerous. It should be monitored very closely as to whetherthis ‘instinct’ conforms to the human rights provisions and principles. Moreover these principles are not only to be observed by the judges, but also by the Prosecution and the Registry.

In the following I have identified eight principles. Most of these are to a greater or lesser extent expression of the overall principle of a ‘fair trial’. Trial fairness is a common maxim, which is easily proclaimed but hard to define precisely. I will start with a critical analysis of the fair trial principle and continue by looking at other more concrete principles pertaining to the trial.

I. Fair trial

Fair trial is the core concept and principle of a criminal trial according to modern discussion of criminal procedure.⁵ ‘Thus, since it is a commonly shared opinion that justice is achieved only by processes which are perceived as fair and impartial adherence to procedural fairness as a means to the realization of substantive equality becomes the critical test of international courts’ legitimacy and credibility.’⁶

This development has been fostered by the human rights jurisprudence, in particular that of the ECtHR.⁷ Without this, the word ‘fairness’ would probably not (p. 380) have met the same level of acceptance even in Continental Europe. It is interesting to note, that the German language does not have a proper synonym and ‘fairness’ has found its way into the language as a foreign word in particular in the field of a sporting event in the sense of ‘fair play’.⁸

The IMTSt contained only a few provisions on procedure. However, Part IV of the IMTSt was headed ‘Fair Trial for Defendants’ and Art. 16 IMTSt laid down the procedure which should ensure fairness vis-à-vis the accused.⁹ Much has been written about whether the Nuremberg trial could be considered as a fair trial.¹⁰ Whereas the Prosecutors—not surprisingly—considered the trial to have been fair,¹¹ doubts were raised by defence counsels.¹²

The IMT was under the particular duty to expedite proceedings according to Art. 18 IMTSt. Therefore defence rights were sometimes taken back for the purpose of speeding up the trial. However, with particular regard to disclosure rights, the IMT practice went beyond the US or British law on disclosure.¹³

Today the tensions are even higher.¹⁴ Expediency of the trial is one major issue at modern tribunals. Disclosure rules have caused many problems with regards to trial fairness as was discussed in Chapter 7.¹⁵ The greatest challenge concerning fairness is connected to rights of witnesses and victims as regards their protection and possible participation as foreseen at the ICC.

Yet a fair trial is a prerequisite for justice: ‘A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.’¹⁶Page Id: 380References(p. 381)

But what does procedural ‘fairness’ mean? Is there a general standard of ‘fairness’? Or is every jurisdiction, indeed every court, called upon to develop its own concept of trial fairness?¹⁷ Is ‘fairness’ relative to the procedural system at the individual courts and tribunals?

In general, we can agree with Zappalá, who has held that: ‘Fairness is the standard for assessing the behavior of public authorities towards the individual against whom criminal charges are laid and who is then subjected to criminal prosecution.’¹⁸

To find out what the standard is, one ought to look first at human rights law.

1. Human rights law

Human rights documents do not speak of a ‘fair trial’ but rather acknowledge a right to a ‘fair hearing’ to the person charged, Art. 14 (1) ICCPR and Art. 6 (1) ECHR. In particular, the jurisprudence of the ECtHR has emancipated itself from the English wording of the Convention’s text.¹⁹ It has turned the right to a fair trial into one of the most fundamental legal principles as part of the ordre public and closely connected this to the principle of the rule of law.²⁰

Despite this prominence, a clear definition is lacking. The systematic approach which has developed is such that Art. 14 (3) ICCPR and Art. 6 (3) ECHR respectively contain minimum guarantees for the accused.²¹ Yet a violation of one of the minimum guarantees in the eyes of the ECtHR does not automatically warrant the conclusion that the trial has been unfair.²² An ‘overall examination’ as to whether the trial ‘as a whole’ was unfair, is to follow.²³ However, this does not mean that the absence of a violation of a specific minimum guarantee leads to the conclusion that the trial has been fair. It was this understanding of fairness which goes beyond the minimum guarantees’ concept, which helped develop a living and dynamic general right, and establish additional aspects like the right to an adversarial hearing, the principle of equality of arms, and the right to a reasoned judgment.²⁴

Yet this interpretation has also a critical side to it. The fair trial requirement, as it has developed in the case law of the ECtHR and other bodies, appears sometimes to be an obstacle to further development of procedural rights. The standard test of the ECtHR to apply an ‘overall examination’ whether or not the proceedings in Page Id: 381References(p. 382) its entirety can be seen to be ‘fair’,²⁵ has added to the vagueness of the rights of the accused.²⁶

2. Tribunals

Art. 21 ICTYSt and Art. 22 ICTRSt contain the right to a ‘fair trial’ in a similiar wording as the human rights covenants. In particular the twofold approach of (1) a list of minimum guarantees, and (2) the over ‘fairness’ requirement can be found in both statutes. In interpreting these rights, the Tribunals have always taken heed of the jurisprudence of the ECtHR.

One general question regarding the implementation of procedural fairness, which has been brought up by the ICTY, is the question of whether the prosecutor can claim unfairness and rely on equal arms vis-à-vis the defence.

In several decisions, different chambers of the ICTY have built a strong case around the hypothesis that fairness, namely the equality of arms requirement, operates on both sides, that is, could also benefit the Prosecutor. As the ICTY Appeals Chamber stated in Aleksovski: ‘This application of the concept of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the interests of the victims of the offence charged.’²⁷

This sentence reveals a clear misunderstanding of the concept of human rights in criminal procedure.²⁸ This confusion is to a certain extent fuelled by the often invoked principle of equality of arms, which will be discussed later.²⁹ This principle which has be derived from the ‘fair’ trial principle, assumes that there are two parties which need to be brought together at the same level. But even the equality of arms principle does not imply a right for the prosecutor.

Trial fairness is a human right for the accused and nothing else. His or her position as both a subject and an object of the proceedings requires protection from the overwhelming power of state authorities. The trial must be just and fair towards the accused.

3. ICC

The ICC’s legal regime is similar to that of the ad hoc Tribunals. Art. 67 (1) ICCSt contains the right to a ‘fair hearing’ as well as an extended list of minimum guarantees. The drafters of the Statute have amended the list according to the jurisprudence Page Id: 382References(p. 383) of the ECtHR and other human rights bodies, and developed a laudable modernized list of minimum guarantees.³⁰

To date, it is unclear what the ICC will make of this. The primary responsibility for the fairness of the proceedings rests with the Trial Chamber that must, according to Art. 64 (2) ICCSt, ensure that the trial is ‘fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’ This brings a whole bouquet of different aspects and dimensions which must be taken into account. The wording implies that fairness and expeditiousness are situated on the same level. Yet the full respect for the rights of the accused and due regards for the protection of victims seem to be on different levels; that is, rights of the accused are on a higher level. In the case of conflict, the rights of the accused shall prevail.

4. Conclusion

Trial fairness is an important yardstick. It is the key to a just, legitimate, and acceptable judgment. Yet at the same time, the concept remains rather vague. Fairness consists of a list of minimum guarantees but must be seen as a dynamic principle, which goes beyond these separate rights. However, the concept of the ‘overall examination’ of the fairness as applied by the ECtHR is not helpful regarding the development of an international procedural law. An overall examination might be useful for an appeals court or a human rights body. It does not assist in the development of precise rights at the trial level.

Fairness must be seen as an uncompromising concept. A trial is either fair or unfair. It cannot be less fair or fairer.

It must be kept in mind, that ‘fairness’ is a highly subjective concept, depending to a large extent on the individual understanding of the spectator. Different people will have different views on what still is and what no longer is fair. If such a vague term is used as a legal term, there is a real danger of user-defined, even arbitrary, interpretation. It is thus necessary to develop certain hard criteria as necessary conditions of procedural fairness.

What can be counted amongst these criteria is the necessity to treat the accused not as a pure object of the proceedings, but to meet him/her as a subject of the proceeding and respect his or her human dignity notwithstanding the charges which are brought.

II. Expeditious trial

‘Justice delayed is justice denied’.³¹ The maxim of an expeditious trial is of enormous importance for the criminal process. The criminological rational behind the (p. 384) maxim is the empirically proven fact that a sanction, which follows immediately after the offence has taken place, has more impact on the culprit and works as a deterrent. From a victimological point of view, a swift legal response might have a greater influence on the healing process.³²

National courts are in conflict with this provision frequently as is shown by the fact that out of all ECtHR case law, 26 per cent of cases pertain to the right to be tried without undue delay contained in Art. 6 (1) ECHR.³³ In international criminal procedure, the situation seems even worse. The excessive length of periods of pre-trial detention and trials are ‘a weak spot in the administration of international criminal justice’.³⁴ Not only are the cases relatively complex, but language problems and procedural challenges tend to delay the proceedings too.

Before looking at the specifications of the right to a speedy trial, a clarification is necessary: what will be discussed in the following is the ‘speedy trial’ as a principle of the trial. The scope of application is thus limited to the trial. This means that in this section we will not take issue with the question of whether in an international setting of mass atrocities, more time needs to elapse between the offences and prosecution, as the entire truth might come to light only after some time has passed.³⁵ This question is related to the legitimacy of international criminal prosecution and is discussed in this context.

1. Human rights law

All major human rights treaties recognize a right to a ‘speedy’ trial. The terms used are that the accused has a right to be tried without ‘undue delay’, as in Art. 14 (III) (e) ICCPR, or ‘within a reasonable time’ according to Art. 6 (I) ECHR and Art. 8 (I) AmCHR, or Art. 7 (I) (d) AfCHPR. Even if the wording is unclear, the provision pertains not only to the beginning of the trial, but comprises the time by which a trial should end and judgment be rendered.³⁶ The aim of the rule is to protect all parties in court proceedings against excessive procedural delays.³⁷ The accused has a specific interest in a verdict being given without undue delay. Bearing in mind that his/her reputation is at stake and that s/he Page Id: 384References(p. 385) must be presumed innocent throughout the trial, the proceedings must be conducted in a way that the charged does not remains uncertain of his/her fate for too long.³⁸

The right to a speedy trial becomes even more important if the accused is in pre-trial detention, as is regularly the case at international criminal courts.³⁹ Art. 9 (3) ICCPR and Art. 5 (3) ECHR therefore have separate provisions for the person in detention. The scope of application of these norms is not uncontested.⁴⁰ Yet it is recognized as calling for even more expeditious proceedings in order to end the stage of uncertainty for the accused as soon as possible.⁴¹

Due to the difference in complexity of cases, it is impossible to give absolute time limits for the trial. Some delays are acceptable, while some are not. The ECtHR has developed the following test and established a number of parameters which are relevant here:⁴²

The relevant time starts with the ‘charge’; that is, the moment the person concerned is formally confronted for the first time with the accusations against him/her. It ends with the final verdict. In considering whether or not the length of the proceedings is reasonable, the complexity of the case has to be taken into account. The complexity is derived from the volume of evidence,⁴³ the number of defendants or charges,⁴⁴ the need to obtain expert witness or testimony from people abroad,⁴⁵ or indeed, the intricacy of the legal issues involved. It could thus be necessary for the prosecution and the court to reduce the number of charges in order to enhance the manageability of the case and shorten the proceeding.⁴⁶

On the other side, however, the obstacles presented by the defendant must be taken into account. Deliberate obstruction of the prosecution cannot be blamed on the judicial authorities.⁴⁷ But this is a fine line. As the defendant need not cooperate Page Id: 385References(p. 386) with the prosecution s/he cannot be compelled to do so by referring to the speedy trial requirement.⁴⁸

In summary the ECtHR adopts the following criteria:

(1) The significance of the issue for the defendant, for example, the person detained has a greater interest in expeditious proceedings.
(2) The complexity of the case.
(3) The conduct of the defendant himself.
(4) The conduct of state officials concerned with the case.

2. Tribunals

Art. 21 (4) (c) ICTYSt and Art. 20 (4) (c) ICTRSt state that the accused has the right to be tried ‘without undue delay’. The wording of Art. 17 (4) (c) SCSLSt is similar. As the wording of the respective norms mirrors the human rights conventions mentioned above, the UN judges have always respected the ECtHR for the interpretation of the Tribunals’ statutes.⁴⁹ Furthermore the Appeals Chamber has held that the speedy trial principle is not at the disposition of the accused. S/he cannot waive this right. The Tribunal is responsible for a process without undue delays.⁵⁰

In order to speed up the proceedings, which was even more relevant after the Completion Strategy was in place, the Tribunals developed several specific mechanisms to expedite the proceedings.⁵¹ These lead to modifications in the pre-trial phase in particular, which was recognized as essential for the proper preparation and management of the trial.⁵²

Therefore, amendments to the indictment brought forward by the Prosecutor according to Rule 50 RPE ICTY do not justify a delay in the proceedings.⁵³ A Pre-Trial Judge was introduced by Rule 65ter RPE ICTY, who should manage the case from early on.⁵⁴ The role of the Pre-Trial Judge will be discussed Page Id: 386References(p. 387) in further detail later on.⁵⁵ Statements and motions should be introduced in writing and a hearing would only be held in exceptional circumstances.⁵⁶ At the trial phase, the Trial Chamber can limit the time for the parties to present their respective cases.⁵⁷

The decision as to whether there has been an undue delay or not is to be taken on a case-by-case basis.⁵⁸ The ICTR Appeals Chamber has developed a list of parameters which mirrors the above-mentioned ECtHR case law. These parameters are:

(1) the length of the delay,
(2) the complexity of the proceedings,
(3) the conduct of the parties,
(4) the conduct of the relevant authorities and, as an additional requirement,
(5) the prejudice to the accused, if any.⁵⁹

In case of an extreme delay on the side of the Prosecutor the Appeals Chamber of the ICTR held that as a last resort the trial could be halted and the charges be dropped. In that case a retrial would be disallowed.⁶⁰

3. ICC

At the ICC the right to a speedy trial is contained in Art. 64 (2) and 67 (1) (c) ICCSt and repeats Art. 14 (3) (e) ICCPR.⁶¹ The ICC has set itself too ambitious a goal when it was stated in the Court Capacity Model that the average trial should not last more than three years.⁶² Today the proceedings suffer in particular from the extensive confirmation stage, which is shown by the following tables:Page Id: 387References(p. 388)

Table 8.1 Timeline of Prosecutor v Thomas Lubanga

Prosecution application for a warrant of arrest	12 January 2006
Warrant of arrest:
Issued under seal	10 February 2006
Unsealed	17 February 2006
Surrender to the Court and transfer to the Detention Centre in The Hague	17 March 2006
First appearance before Pre-Trial Chamber I	20 March 2006
Confirmation of charges hearing	9-28 November 2006
Decision on the confirmation of the charges	29 January 2007
Commencement of trial	26 January 2009

Table 8.2 Timeline of Prosecutor v Germain Katanga

Prosecution application for a warrant of arrest	25 June 2007
Warrant of arrest:
Issued under seal	2 July 2007
Unsealed	18 October 2007
Surrender to the Court and transfer to the Detention Centre in The Hague	17 October 2007
First appearance before Pre-Trial Chamber I	22 October 2007
Confirmation of charges hearing	27 June-18 July 2008
Decision on the confirmation of the charges	26 September 2008
Commencement of trial	24 November 2009

Table 8.3 Timeline of Prosecutor v Jean-Pierre Bemba Gombo

Prosecution application for a warrant of arrest	9 May 2008
Warrant of arrest:
Issued under seal	23 May 2008
Unsealed	24 May 2008
Request to the Kingdom of Belgium for provisional arrest	23 May 2008
Arrest from the Belgian authorities	24 May 2008
Warrant of arrest replacing (23 May 2008)	10 June 2008
Request to the Kingdom of Belgium for arrest and surrender	10 June 2008
Transfer and surrender	3 July 2008
Initial appearance before Pre-Trial Chamber III	4 July 2008
Confirmation of charges hearing	12-15 January 2009
Decision on the confirmation of the charges	15 June 2009
Commencement of trial	22 November 2010

The ICC should also adopt a last resort in terminating the proceedings in case of an inexcusable delay on the side of the Prosecutor. This sword of Damocles should help OTP structure its work and thus expedite investigation and prosecution, a responsibility which rests largely with the Prosecutor.⁶³Page Id: 388References(p. 389)

4. Conclusion

War crime trials are not of such a special nature that the human rights criteria which have been developed over many years cannot be applied in evaluating the length of the proceedings.⁶⁴ Yet parameters, like the complexity of the case, are influenced by several factors which are typical for war crimes trials. For example, dealing with traumatized victims is difficult, the finding of evidence in circumstances of war is highly dangerous, prosecution may take place many years after the alleged crime occurred, and often in a country far from the seat of the trial. The Tribunals and the ICC have always adhered to this principle and take into account ECtHR case law when considering delays in the process. Yet they have stretched human rights standards as far as possible, so that sometimes reference to them appears to offer no more than pure lip service.⁶⁵

One argument, often brought forward when discussing the length of proceedings, is the lack of financial resources.

The principle of a speedy trial must be related to other procedural maxims. An expedited trial is a corollary of the general fairness requirement.⁶⁶ It is also an expression of the presumption of innocence, as the defendant’s status of uncertainty should be resolved as quickly as possible. However, there are other rights of the accused which would—objectively—lead to a delay in the process. But these rights, like the right to adequate time and facility to prepare the defence, cannot as such justify a delay. The urge to speed up the proceedings is in conflict with the quest for truth. Prosecution must be both speedy and efficient.

In that regard, the ICTY has been criticized after the completion strategy was set in place for having thrown the baby out with the bath water, and shifted the focus of criminal procedure to the lengths of trials only.⁶⁷ And at least one judge has expressed his concerns regarding the fairness of the trials and the rights of the accused, which are threatened by a one-sided emphasis of the speedy conclusion of trials.⁶⁸Page Id: 389References(p. 390)

III. Public trial

The trial must be a public one. A liberal and democratic legal system cannot allow criminal prosecution to take place in secret, as the lack of control would open the field to unfairness, abuse, and arbitrariness.⁶⁹ Also, a public trial safeguards the independence of the judiciary in the sense of a separation of powers. Justice shall be made transparent and accessible to everyone.⁷⁰ At the same time, publicity sometimes poses a danger to either the accused or other participants in the trial, like the witnesses or victims. The principle of a public trial cannot be seen as an absolute right and its merits must thus be weighed up against other interests and principles.⁷¹ Yet there must always be a possibility for the general public to exercise control over the procedure as such. We will see in the following how human rights law and international criminal tribunals deal with these dilemmas.

Before doing this, I want to mention two public groups of key relevance. The press plays an important role in making the public aware of the proceedings. The presence of the press in the courtroom is a special guarantee for the safeguarding of ‘fairness’. Therefore, even if the interest of the general public is great, and the facilities of a courthouse limited, some seats must always be reserved for journalists.⁷² It is, after all, their responsibility to inform the general public about the trial.

Another group of persons who merit special attention are trial monitors. In some international tribunals, in particular in Sierra Leone and Cambodia, but also in some national courts, as in Germany, specially trained monitors observe the trial and report to the general public by posting weekly reports on the internet. Monitors watch over the adherence to international ‘fair trial’ standards and prepare protocols for academic analysis. These monitors are mostly seen as part of the general public but would deserve a status similar to the press, as they fulfil a special duty to the public which goes beyond mere information dissemination.

1. Human rights law

The principle of a public trial is embodied in Art. 14 (1) ICCPR, Art. 6 (1) ECHR, and Art. 8 (5) AmCHR. However, these norms are accompanied by a whole variety of exceptions. For example, Art. 14 (1) 3 ICCPR states:

The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly Page Id: 390References(p. 391) necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

a. Publicizing the decision

There is a clear separation between the public hearing on the one hand and the public pronouncement of the judgment on the other. As regards the latter, there is only one exception to the publicity: the interests of juvenile persons. Even if there were good reasons to hold the hearing behind closed doors, the ‘result’ of the proceedings; that is, the decision, must be made public.⁷³ The deposition of the decision with the registry will satisfy the public pronouncement requirement as long as the decision is publicly accessible.⁷⁴ This will put the public in a position to exercise control ex post, even if the ongoing trial was unsupervised.

b. Publicizing the hearing

The exceptions to the publicity of the hearing are far more complex. All in all there are five. The public may be excluded for the protection of: (a) morals, (b) public order (ordre public), (c) national security, (d) in the interest of the private lives of the parties, or (e) if it is strictly necessary in the opinion of the court in circumstances where publicity would prejudice the interests of justice.

Three cases seem to be most relevant during the criminal procedure. (1) Order in the courtroom must be upheld and, if necessary, by excluding the public from the hearing, (2) sensitive information concerning national security must be protected, and (3) the accused, victims, and witnesses could need protection which could be provided by excluding the audience from the courtroom.

(1) Concerning the order in the courtroom justification of holding an in-camera hearing might be based on the ‘protection of public order’ requirement. Even if the term ‘ordre public’ usually pertains to something more fundamental, as the general constitutional principles of society, it has been argued that the prevention of disorder in the courtroom comes under this exception.⁷⁵ Also the jurisprudence of the ECtHR points into this direction.⁷⁶Page Id: 391References(p. 392)

(2) The term ‘national security’ in Art. 14 (1) ICCPR has been supplemented by the words ‘in a democratic society’.⁷⁷ This means that this exception cannot be invoked by the government at liberty, but can be reviewed by the court. Yet in international criminal law, national security issues are at stake at a much more frequent rate compared to purely national trials prosecuting ordinary crimes as will be discussed later.

(3) Finally, the protection of the persons involved in the trial can justify excluding the public from the hearing. This is true for the accused. In particular the juvenile offender falls within the scope of this exception.⁷⁸ Also in cases of sexual offences, the private and family life of the accused might be affected in such a way that the public could be excluded.⁷⁹

Concerning the protection of the victim, it is doubtful whether justification could be based on the ‘interests of the private lives of the parties’, as technically speaking a victim is not a party to the proceedings.⁸⁰ I would thus suggest that the protection of both victims and witnesses comes within the ambit of the final ground for justification mentioned in Art. 14 (1) ICCPR, namely that ‘publicity would prejudice the interests of justice’. Even if this provision can only applied in special circumstances and even if the exclusion of the public must be strictly necessary in the opinion of the court, this clause embraces all cases in which conflicting rights and principles need to be balanced against the right to a public hearing.

It must be kept in mind that the exceptions pertain not only to the question of whether or not the public can be excluded. The principle of publicity of trial also demands that the exclusion of the public shall be as short as possible and shall only be applied as long as strictly necessary. In general, this means that the exclusion of the public is only justified as long as the danger prevails. To exclude the public from the entire trial is only justified in proceedings against juvenile offenders.

2. Tribunals

The ad hoc Tribunals recognize the principle of a public trial amongst other rights of the accused in Art. 21 (2) ICTYSt, Art. 20 (2) ICTRSt, and Art. 17 (2) SCSLSt. The tribunals adopt this principle by holding public hearings and inviting the public to sit in the visitors’ gallery, by broadcasting the hearings over the internet, by publishing decisions and submissions of the parties, and by providing trial transcripts on the internet.⁸¹ Yet the Chamber may order the exclusion of the public Page Id: 392References(p. 393) according to Art. 20 (4) ICTYSt, Art. 19 (4) ICTRSt and Rule 79 RPE SCSL. Indeed, the right of the accused to be tried in public is expressis verbis limited by the protection of the rights and interests of victims and witnesses. Art. 22 ICTYSt and Art. 21 ICTRSt foresee in camera proceedings for this reason, further elaborated in Rules 75 (B) (ii) and 79 ICTY RPE.

The Rules provide further exceptions in Rule 79 ICTY RPE. For reasons of (i) public order or morality, (ii) safety, security of non-disclosure of the identity of a victim or witness, and (iii) the protection of the interests of justice, the press, which is mentioned separately, and the public may be excluded from all or part of the proceedings. Similarly, Rule 79 RPE SCSL anticipates closed sessions for reasons of (i) national security, (ii) protection of victims and witnesses, and (iii) interests of justice.

Obviously, the Tribunals’ provisions mirror the human rights norms without them being congruent. At some point they seem even more vague than their respective human rights equivalent. This is particularly regrettable as the Statute and Rules of the Tribunals are silent concerning the application of the exceptions. The prerequisites for exclusion of the public remain unclear.⁸² However, the jurisprudence of the ICTY shows, that the judges have—on a case-to-case basis⁸³—rightly adopted a restrictive interpretation of the law concerning closed sessions and held that those were only justified if no other measure would provide the degree of protection required.⁸⁴ Therefore it has been held, that the ‘national security interests’ will not be at the discretion of the state, but will be reviewed by the Court.⁸⁵ Also frequently, the facial distortion of the broadcast image of the witness was considered a less restrictive measure instead of a closed session.⁸⁶ The ICTY has also developed a unique feature in order to protect the witness at risk and at the same time uphold the publicity of the trial. Instead of going into closed session, which is anticipated in the Statute and Rules, the trial might also go into private session. Whereas in a closed session the public is excluded from following the trial altogether, in a private Page Id: 393References(p. 394) session, the audio is turned off but no blinds are drawn. Therefore the public can see what is happening behind the bullet-proof glass, but cannot hear.⁸⁷

3. ICC

At the ICC, Art. 74 (5) ICCSt declares that the judgment or a summary therefore must be delivered in open court.⁸⁸ Furthermore Art. 64 (7) and 67 (1) ICCSt anticipate a public trial as the general rule. Yet closed sessions are designed for the protection of the accused, witnesses, and victims (as of Art. 68 (2) ICCSt), and also for the protection of confidential or sensitive information. It appears that the number of exceptions is rather limited compared to the human rights requirements. The protection of juveniles is not necessary, as the jurisdiction ratione personae of the ICC does not embrace persons under the age of eighteen, according to Art. 26 ICCSt.

a. For protection purposes

Art. 68 (1) and (2) ICCSt and Rule 88 (1) RPE ICC name a list of scenarios in which a closed session would be justified:

• In cases where the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses is at risk,
• in the case of a victim of sexual violence,
• in the case of a child as a victim or witness,
• in the case of an elderly person,
• in the case of a traumatized victim.

A hearing on a motion requesting the exclusion of the public according to Art. 68 (2) ICCSt may also be held in camera according to Rule 88 (2) RPE ICC. Also a hearing on other protective measures for victims and witnesses may be held in closed session according to Rule 87 (3) RPE ICC. Finally, a special norm is to be found in Rule 72 (2) RPE ICC. In a case of sexual violence, if evidence concerning consent of the victim is in question, the Chamber may hold a hearing in camera when ruling on the admissibility of such evidence.

As can be seen from the few cases the ICC is prosecuting to date, these rules are applied in a rather profligate way. Not only are many hearings held totally or partially in camera, but as early as the second day of the first trial of the newly established ICC, in the case against Thomas Lubanga on 27 January 2009, the Chamber applied Rule 88 RPE ICC and had part of the hearing in closed session,⁸⁹ also decisions are often published in severely redacted versions.⁹⁰Page Id: 394References(p. 395)

b. Confidentiality purposes

Art. 64 (7) ICCSt is rather vague when referring to sensitive or confidential information. The source of the confidentiality is not laid down in detail. Indeed there may be several sources. It might be based on a privilege as contained in Rule 73 RPE ICC. Along with the lawyer-client relationship, several professional privileges are enumerated in Rule 73 (3) RPE ICC.

States may furthermore apply for protective measures, including the exclusion of the public, in respect of the protection of its servants or agents and the protection of confidential or sensitive information according to Art. 68 (6) ICCSt. A more detailed norm embracing confidential or sensitive information⁹¹ is to be found in the disclosure regime. Confidentiality might be derived from ‘national security interests’ of sovereign states as foreseen in Art. 72 (7) (a) (i) ICCSt. Under these circumstances it is not only possible to exclude the public and hold the hearing in camera, it is also possible to exclude other parties and have an ex parte hearing. It is highly questionable what exactly falls under the remit of security interests, and it ought not surprise that states tend to adopt a rather broad understanding of this term.⁹² However, truth-finding in criminal trials is severely hampered by imposing vast national security limits. It is thus submitted that the term should be read in a narrow way, pertaining to threats which affect the country as a whole and relate to the use of force, or threat of force, against the political independence or territorial integrity of the state.⁹³ The ICC would be well advised to follow the ICTY jurisprudence in this regards and insist on its power to determine whether or not the national security interests are concerned. In doing this, the ICC may hold an ex parte hearing.

4. Conclusion

The publicity of the trial is an important human rights provision. In international criminal procedure, the accused has a right to a public trial. However, the Statutes of the Tribunals as well as the Rome Statute place equal weight on the need to protect victims and witnesses. Therefore, there are extensive possibilities to exclude the public in order to protect the life, the well-being, or the privacy of witnesses and victims. In almost every international trial, restrictive measures have been applied but despite these, witnesses have been threatened, assaulted, or killed for having testified.⁹⁴

The principle of a public trial is not severely restricted by these options. Indeed principles always need to be balanced with other principles and interests. In this instance, the security of the witnesses and victims need to be weighed against the requirement for a public trial. In the course of this consideration, however, the general (p. 396) aim towards publicity of the trial must not be abolished. As has been expressed by Judge Fulford at the first Status Conference in the Lubanga case before the ICC: ‘we [ie the Trial Chamber] propose to scrutinise very carefully each and every occasion when it is suggested that there should be a departure from the principle of open justice.’⁹⁵

As long as the public is still in a position to monitor the trial and exercise democratic control over the judges in an overall sense, I do not see a violation of the principle of publicity. In particular, the decisions and judgments need to be made public, so that the public can be informed and can supervise the judiciary.

IV. Defendant’s presence at trial

The accused has a right to be present at trial. A ‘trial in absentia’ is generally conceived of as being unfair. Even if not all national legal systems recognize such trials, although Continental European criminal procedural law is broadly familiar with some sort of trial in absentia,⁹⁶ international criminal procedure following Anglo-American law in this regard insists on the presence of the accused at trial.

This was not always the case. The case against Martin Bormann at the IMT in Nuremberg was conducted without the accused being present pursuant to Art. 12 IMTSt. Indeed Bormann, who was represented by counsel, was sentenced in absentia to death by hanging. It was discovered later that he was already dead at the time of the trial.⁹⁷ His legal counsel, Dr Friedrich Bergold, often complained that without contact with his client he was not in a position to investigate exculpatory evidence properly.⁹⁸ The case against Bormann was delayed until the end of the parent trial, in order to give more time to prepare the defence.⁹⁹ Nevertheless, Bergold fought a losing battle, not least due to a tendency of the other accused to put the blame on Bormann, who after all was not present to oppose.¹⁰⁰ Even as Bergold tried to prove the death of the defendant by witness testimony, the IMT judges were not willing to terminate proceedings against Bormann.¹⁰¹Page Id: 396References(p. 397)

1. Human rights law

Art. 14 (3) (d) ICCPR foresees a right of the defendant to be tried in his or her own presence. Even if it is not contained in the ECHR explicitly, the right to be present is inherent in Art. 6 ECHR as a whole, with regard to the object and purpose of this article.¹⁰² The right to be present is essential for a fair and just trial for three reasons: (1) the accused has the right to be heard, (2) s/he has a right to defend himself adequately, and (3) his/her presence is necessary for the truth-finding purpose to confront the accused with the evidence and the testimony of witnesses.¹⁰³

Yet the right to be present is not guaranteed in absolute terms. The reasons for the absence of the defendant have to be taken into account. In the interests of a proper administration of justice, a trial in absentia might be permissible.¹⁰⁴ The HRC has given the ‘waiver’ of the right to be present as an example for such an exception. In any case, the rights of the defence must be strictly observed, even if the absence of the accused is permissible in exceptional circumstances.¹⁰⁵ It is highly questionable if an adequate defence can be observed at all, if the defendant has never appeared, and has never been in contact with counsel. The case against Bormann is a good example for this. Therefore it is necessary that should the defendant appear at some later time, then s/he must be able to obtain a new determination of the merits of the charge. This means that the entire trial must be repeated from the beginning as an appeals procedure is not sufficient in this regard.¹⁰⁶ This might be different if the accused is excluded from the trial hearing for some limited time only for reasons of upholding order in the courtroom.

2. Tribunals

The UN Tribunals relate to Art. 14 (3) (d) ICCPR and prohibit trials in absentia, Art. 21 (4) (d) ICTYSt, Art. 20 (4) (d) ICTRSt and Art. 17 (4) (d) SCSLSt.¹⁰⁷ The accused has a right to be present in the courtroom. Yet the Tribunals have two exceptions: (1) waiver, and (2) disruption.

The accused can waive the right to be present in the courtroom if this decision is ‘free and unequivocal’, fully informed, and s/he is continuously represented by counsel.¹⁰⁸ These prerequisites have been applied in a rather broad way as the ICTR Page Id: 397References(p. 398) interpreted the declaration of the accused Barayagwiza that his trial was a show trial and never attended an implicit waiver.¹⁰⁹ At the ICTY some accused have offered their written consent to the trial continuing in their absence, which seems unproblematic.¹¹⁰

The second reason for a trial in absentia is constant disruption of the proceedings on the side of the accused. If and when the accused intentionally and continuously interrupts the ongoing trial, the judges may remove him/her from the courtroom, after s/he has been warned. The accused forfeits the right to be present by such undue behaviour.¹¹¹ A video-link should be made available so that the accused is in a position to follow the trial from outside the courtroom in such instances.¹¹²

A different scenario arises if the accused suffers from a long-term illness and is thus prohibited from being physically present in the courtroom. It has been upheld that the right to physical presence is not being compromised by participation via video-link.¹¹³ Therefore, in the case of unintentional disruption of the trial by illness, trial must be delayed. Yet if the disruption is ‘substantial’ and all other reasonable means have been exhausted, the trial could continue in the absence of the accused in order to assure a reasonably expeditious trial.¹¹⁴

In that case, the chamber must apply measures to safeguard the accused’s right to follow the trial and participate in the proceedings. The accused must therefore be in a position to communicate freely with counsel and to address the court at any time.¹¹⁵ This would mean that the trial should be broadcast to the accused and the proceedings must be interrupted at regular intervals to give the accused time to consult and instruct his or her legal representative in the courtroom.

However, if the health of the accused degrades constantly, or his/her mental capacity diminishes to such an extent that s/he cannot follow the proceedings, instead of continuing in the absence of the accused, the prosecution should be halted and the proceedings against such a person terminated.¹¹⁶ At the IMT in Nuremberg, Page Id: 398References(p. 399) this was done in the case of Gustav Krupp. Due to his illness and age, the charges were dropped and no proceeding in absentia took place.¹¹⁷ The judges were almost prepared to release Rudolf Hess due to his state of mind (amnesia), but because he declared himself fit to stand trial, it continued in his presence.¹¹⁸ Later on as doubts were raised as to the mental fitness of Hess,¹¹⁹ the IMT constantly denied reviewing its prior decision again.¹²⁰

It should be mentioned that Rule 61 RPE ICTY provided for a hearing which took place without the suspect. Yet this review of the indictment which was invoked only five times in the early jurisprudence of the ICTY,¹²¹ resulted in the issuance of an international arrest warrant and did not constitute a proper trial. As soon as the suspect appeared at the ICTY, a trial proceeding was initiated.¹²²

3. ICC

Art. 63 (1) ICCSt expresses the prohibition of a trial in absentia.¹²³ The accused ‘shall be present during trial’. Art. 67 (1) (d) ICCSt contains the defendant’s right to be present at trial. Both provisions are limited by Art. 63 (2) ICCSt which gives the Chamber the power to remove the accused if s/he continues to disrupt the trial. The trouble must be repetitive and persistent.¹²⁴ The accused can only be removed, if all other means to uphold order in the courtroom have been exhausted. In particular the accused must be warned that s/he might be removed from the courtroom should s/he not adopt his or her behaviour. The procedure to be adopted in such a case is similar to that at the Tribunals. The person removed must be put in a position to follow the trial from the outside of the courtroom and communicate with counsel if s/he so wishes. The duration of the removal must be kept to the minimum possible.Page Id: 399References(p. 400)

Although the Rome Statute does not contain an explicit provision on the waiver of the right to be present, the ICC should accept such a concept, despite the wording of Art. 63 (1) ICCSt. There is no necessity to delay the proceeding in a case where the informed accused voluntarily waives his or her right to be present at trial as long as there is legal representation in the courtroom.

There are some provisions in the ICC law which allow an ex parte hearing; that is, without the accused and counsel. According to Art. 72 (7) ICCSt such a hearing might be staged for the protection of national security information. Furthermore, Rule 74 (4) RPE ICC foresees an ex parte deliberation with the prosecution of the question whether a witness who might incriminate him or herself could be given an assurance that his or her testimony will be kept confidential and not be used in subsequent proceedings before the Court. Finally, Rule 88 (2) RPE ICC provides for an ex parte hearing in order to consider the implementation of special protective measures to a traumatized victim.

4. Conclusion

The right to be present at trial is not only a right in the classical sense. It is a general principle of international criminal procedure that there is no trial in absentia.¹²⁵ Yet this principle is not absolute.¹²⁶ Either by waiver or by forfeiture, the trial might continue without the accused being present. However, this avenue is only open for the Chamber in exceptional circumstances, and must be kept as short as possible. In addition, the accused must have the opportunity to follow the proceedings from the outside of the courtroom. Counsel, who must in any case attend the trial, must be able to communicate with the client at all times.

V. Oral trial

The trial has to be oral. This principle is closely connected to the maxim of a public trial. The modern trial is not a secret one based solely on reviewing documents. The importance of this principle stems from the fact that there is, at least in Continental Europe, no ‘strong tradition’ of oral presentation of evidence at trial.¹²⁷ Prior to the French Revolution the conviction was based solely on paper; that is, in the file.¹²⁸ It was thus a major achievement of the Enlightenment to eliminate secret trials and establish that the charge together with the evidence against the accused have to be made public and read out loud so that the public can exercise democratic control over the trial. The development in England was more cognizant of the oral trial (p. 401) principle, as trial by jury and cross-examination presuppose the oral presentation of the accusation and the evidence.¹²⁹

The oral trial principle requires also that the judgment may only be based on facts and issues which are heard in court and on which the accused has a chance to comment.¹³⁰

In the Nuremberg trial, the principle of an oral trial was respected but was balanced with the duty to expedite proceedings as foreseen in Art. 18 IMTSt. Justice Jackson applied to the judges on 22 March 1946 to treat all the documentary material which has been translated as having been read out already.¹³¹ The defence lawyers objected, because the prosecution had spent months reading the documents and it would be unfair if the defence were not allowed to do the same.¹³² The IMT decided that whenever a party wants to rely on a document as evidence, a summary should be presented, and the Court be directed to important passages.¹³³

1. Human rights law

The principle of an oral trial is not spelt out in human rights treaties literally but is implied by several sentences about the fair trial norms.¹³⁴ First, orality is a corollary of the public trial as it would otherwise not make sense to invite the public to the trial.¹³⁵ Secondly, the right to examine or have witnesses examined, provided for in Art. 14 (3) (e) ICCPR and Art. 6 (3) (d) ECHR can only be fulfilled via oral confrontation of the witness.¹³⁶ Both the HRC and the ECtHR have found a violation of the principle of a public hearing in instances where proceedings took place only in writing.¹³⁷ The oral trial principle is particularly important if questions of facts are involved. In appeals proceedings in which only points of law are contested, a hearing might not be indispensable.¹³⁸

2. Tribunals

There is no explicit provision in the Tribunals’ respective Statutes that the trial must be oral by nature. However, as the procedural law at the Tribunals is based on the Page Id: 401References(p. 402) human rights requirements of a fair and public trial, and on an adversarial examination of the evidence (Rule 85 RPE ICTY), it is presumed that the trial is oral (see also Rules 90 (A) RPE ICTY/ICTR/SCSL).¹³⁹ Case law shows that the UN judges operate on this assumption when a document or an exhibit is to be admitted to the trial through a witness.¹⁴⁰ In addition, the opposing party must be in a position to cross-examine or present oral argument regarding documents or exhibits.¹⁴¹ Only under exceptional circumstances may public documents be admitted as evidence from the bar,¹⁴² or written statements from witnesses might be admissible under Rules 89 (F) and 92bis RPE ICTY. As concerns the latter, these written statements are not allowed in order to prove acts and conduct of the accused. Written testimony can thus only pertain to circumstantial information.¹⁴³ The Appeals Chamber has adopted a broad approach and admitted written evidence as long as the witness was present and could have confirmed his or her statement.¹⁴⁴ This approach was heavily criticized for adopting a far too utilitarian approach and neglecting principled considerations of fairness.¹⁴⁵ In general however, non-oral evidence will not carry the same evidentiary weight as oral testimony.¹⁴⁶ We can thus conclude that the ICTY and the other Tribunals consider the orality of the trial as a general requirement of a fair proceeding.

3. ICC

The situation at the ICC is similar to that at the UN Tribunals. There is no explicit norm stating that the trial be oral. Yet those human rights incorporated in Art. 67 ICCSt presuppose an oral hearing for the determination of the guilt of the person charged.¹⁴⁷ The ICCSt expresses a preference for viva voce, or live, testimony, in Art. 69 (2).¹⁴⁸ Whereas summary evidence instead of witness testimony Page Id: 402References(p. 403) has been admitted at the confirmation stage,¹⁴⁹ these decisions by the Pre-Trial Chamber should be considered as exceptions pertaining only to the confirmation hearing, which—according to the opinion offered here—should be a summary proceeding.¹⁵⁰

4. Conclusion

Even if human rights norms do not state explicitly that the trial must be an oral one, the orality principle is inherent in several fair trial requirements. Most importantly, only in the case of an oral trial can the public exercise its right and duty to a democratic control of the prosecution.

The Tribunals and the ICC respect this principle in general. Nevertheless, there is an increasing tendency at the ICTY to allow written statements and thus speed up the proceedings. However, the comparatively cautious approach adopted by the ICC judges with a view to written testimony might also be due to the fact that they do not feel such an enormous time pressure compared to the ad hoc Tribunals’ backlog yet.¹⁵¹ Their dangerous willingness to rely on written statements might increase with rising pressure on the time spent at trial. Even if it is necessary to approve exceptional circumstances in which written evidence needs to be admitted—which will be discussed at a later stage—it is necessary to adhere to the general principle of a oral trial in order to render public control possible.

VI. Presumption of innocence

The presumption of innocence is perhaps the most important provision, a cardinal principle¹⁵² of the modern, liberal, criminal prosecution. Its aim is to safeguard the compliance with and the prevalence of the rule of law in contrast to the fama publica, or political interests, as the basis for a criminal sanction. Justice Jackson expressed the presumption of innocence before his assignment to act as the US Chief Prosecutor in Nuremberg addressing the American Society of International Law in Washington DC: ‘That is one of the risks that are taken whenever trials are commenced. The ultimate principle is that you must put no man on trial under the forms judicial proceedings if you are not willing to see him freed if not proven guilty.’¹⁵³Page Id: 403References(p. 404)

The Nuremberg trial was based on this credo despite the fact that the Soviet opinion deviated considerably. The Soviet delegation operated on the conviction that the guilt of the twenty one defendants present at Nuremberg before the IMT was already determined. The trial, according to the Soviet opinion, had merely the aim of fulfiling the political will, which was expressed in the Moscow Declaration of November 1943, and attributing the sentence according to the individual responsibility of the accused. The dissenting opinion of the Russian judge, Nikitschenko, expresses this attitude.¹⁵⁴

Yet the presumption of innocence has many aspects, which we need to look at in greater detail.¹⁵⁵

1. Human rights law

It ought not surprise that the principle of presumed innocence is contained in all the major human rights treaties, for example, in Art. 14 (2) ICCPR and Art. 6 (2) ECHR, in Art. 8 (2) AmCHR and Art. 7 (1) (b) AfCHPR. It has consequences for the institution of criminal proceedings, in particular for the independence and impartiality of the judiciary, as has been discussed above.¹⁵⁶ At the trial stage, the presumption of innocence has three different aspects: (1) it relates to the burden of proof, (2) it also relates to the requirement of the proof of guilt, and (3) it influences the behaviour of court or other public officials.

a. Burden of proof

Both the ICCPR regime and the ECHR require that the burden of proof is on the prosecution and any doubt shall benefit the accused.¹⁵⁷ We will not go into further detail as concerns the common law-civil law divide in that regard. The differences are marginal and do not touch on the general principle, that it is the state which must prove the guilt of the accused, and the onus of proof of innocence must never lie with the defendant.¹⁵⁸

The ECtHR has issued a number of decisions in which this principle has been jeopardized by differentiating between a presumption of facts and a presumption of guilt. Only the latter falls under the prohibition of Art. 6 (2) ECHR.¹⁵⁹Page Id: 404References(p. 405)

According to the Strasbourg case law, legal presumption is not prohibited on a general basis, as long as the defendant has a fair chance to rebut the presumption, and as long as the court does refrain from any automatic reliance on the presumption. This jurisprudence is regrettable and has been rightly criticized as perverting the presumption of innocence by putting the onus of proof de facto onto the accused.¹⁶⁰

It must be kept in mind that the ECtHR is often reluctant to intervene vigorously into the laws of the Member States. It has therefore developed the methodological doctrine of the overall-fairness evaluation. The Strasbourg judges will always look at the situation as a whole considering the gravity of the violation, the importance of the human right that risks being violated, and the performance of the national authorities.¹⁶¹ A state will thus only be convicted for having violated the convention if the individual’s right is de facto ‘extinguished’.¹⁶²

b. Proof of guilt

A second question connected to the presumption of innocence is that of the standard of proof required for a conviction; that is, the standard required to refute the presumption of innocence. The standard often invoked is ‘proof of guilt of the accused beyond reasonable doubt’.¹⁶³ Despite differences in terminology and despite a missing clarification by the ECtHR, which relies heavily on the domestic law and the principles of weighing evidence it contains, and exercises nothing more than a control of misuse and arbitrariness,¹⁶⁴ the threshold for reasonable doubt can be seen as generally accepted in democratic societies.

The content of the principle is not specified any further. Taken literally, doubts are obviously allowed, as only ‘reasonable’ doubts would destruct the prosecution case. What constitutes reasonableness in this context is certainly elusive¹⁶⁵ and cannot be derived from human rights provisions. We will have to come back to this point later, when discussing the law at the international courts and Tribunals.Page Id: 405References(p. 406)

c. Conduct of officials

In informal findings prior to the judgment, the court must refrain from presuming the guilt of the accused.¹⁶⁶ Therefore it is enough for a violation of the presumption of innocence ‘that there is some reasoning suggesting that the court regards the accused as guilty.’¹⁶⁷ In such a case the impartiality of the judges would be severely hampered.¹⁶⁸

The presumption of innocence does not only pertain to the court but also to other state officials. All state authorities must treat the suspect as if he or she were innocent until the presumption is refuted by the judgment of the competent court. Even if the state is obliged to inform ‘the public about criminal investigations in progress, but it requires that they do so with all discretion and circumspection necessary if the presumption of innocence is to be respected.’¹⁶⁹

Ministers or high-ranking officers must therefore refrain from commenting on an ongoing trial.

The presumption of innocence has yet another side to it. The authority of the judiciary might be damaged if the accused is treated as guilty in the media. The state must prevent such a situation because Art. 6 (2) ECHR requires the state to protect the suspect from prejudicial influence on his/her prosecution and the protection against unlawful attacks on honour and reputation as provided for in Art. 17 ICCPR.¹⁷⁰ The outcome of a trial is for the court to determine and not for the media. Should journalists interfere in this regard, the state may and must react accordingly and suppress inadmissible commentaries.¹⁷¹ A trial by media must under all circumstances be avoided.¹⁷²

2. Tribunals

The presumption of innocence is contained in Art. 21 (3) ICTYSt, Art. 30 (3) ICTRSt and Art. 17 (3) SCSLSt and is accepted by the Tribunals as a leading principle of procedural law.¹⁷³ As concerns the onus of proof, ICTY jurisprudence recognizes that the onus of proof of the guilt of the accused rests on the Prosecution throughout the case.¹⁷⁴Page Id: 406References(p. 407)

With regard to the standard of proof for the conviction, the Tribunal adopts the standard of proof ‘beyond reasonable doubt’. Yet Rule 85 (A) (2) RPE ICTY/ICTR/SCSL refers only to the majority of the Trial Chamber who need to be satisfied that the accused is guilty. The ‘reasonable doubt’ requirement relates to the individual judge and not to the chamber as a whole. Even if majority verdicts are traditionally the practice of courts in common law states, it is questionable whether this culture should be transferred to the chambers of international courts and Tribunals. The difficulties are described by the following: if two judges have no doubts, but one judge is not convinced, could it be said that the doubts of this one judge are unreasonable, solely because the other two judges have no doubts? In the present author’s view, the majority rule, if adapted to the question of guilt, constitutes a violation of the presumption of innocence, and the chambers should always speak with one voice. In matters of the interpretation of the law, dissenting opinions and majority decisions do not pose the same dangers, and could aid the further development of international criminal law both in substantive and in procedural aspects.¹⁷⁵

The third aspect of the presumption of innocence, that is, the conduct of officials and media, has also given rise to discussions at the UN Tribunals. To uphold the reputation of the accused and protect him/her as innocent seems most difficult to achieve. Several accused have had to suffer from undue scrutiny of their personality in the media before or pending trial.¹⁷⁶

3. ICC

Art. 66 ICCSt containing the presumption of innocence is a much more advanced norm compared to the human rights provisions. In the first paragraph the general principle is mentioned, according to which everyone is presumed innocent until proven guilty before the Court in accordance with the applicable law.¹⁷⁷ The following provisions address two of the discussed consequences of the presumption of innocence, namely that the onus of proof needs to be on the prosecutor (Art. 66 (2) ICCSt), and that the standard of proof is proof beyond reasonable doubt (Art. 66 (3) ICCSt).

a. Onus of proof

It has been said that the ICCSt does not contain any provision establishing ‘reverse onus’.¹⁷⁸ Yet the Statute goes even further and provides for an explicit right of the accused not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal in Art. 67 (1) (i) ICCSt.¹⁷⁹ This marks a new development in procedural law making. By this additional norm the ICCSt (p. 408) prevents the judges from reversing the onus by case law. Such a scenario might arise with a view of ‘defences’; that is, grounds for excluding criminal liability. One of the reasons why the term ‘defences’ was avoided in the Rome Statute is to be seen in the danger, that the onus to proof the factual circumstances of a ‘defence’ is quite easily been transferred to the accused.¹⁸⁰ An example, which has arisen at the ICTY, could be the plea of insanity.¹⁸¹ If we—as did the ICTY Trial Chamber—operate on the assumption that every person is mentally sane and capable of understanding the law and the trial, one could quickly conclude that the accused who wants to defend himself by referring to his state of mind, must deliver proof for his mental insanity according to Art. 31 (1) (a) ICCSt. Art. 67 (1) (d) ICCSt would prohibit such a ruling.¹⁸² In case the defendant does indeed raise a mental disease as the reason for eluding criminal responsibility, the Prosecutor must show that the accused was at the time of the deed in full control of his/her conduct to conform to the requirements of the law.¹⁸³

Similarly one could come to the conclusion that a commander is responsible for the crimes committed by his subordinates according to Art. 28 (1) ICCSt, unless he can show that s/he did not and could not have known of the misbehaviour on the side of his or her subordinates and unless s/he can provide proof that s/he has taken all necessary and reasonable measures to prevent or repress the commission of the crimes or to submit the matter to prosecution. Also here, it is submitted, that it is not the commander who needs to exculpate him or herself, but the onus is on the prosecutor to prove that the commander failed to fulfil the Art. 28 ICCSt requirements.¹⁸⁴

b. Standard of proof

The Rome Statute contains the ‘reasonable doubt’ requirement in Art 66 (3) ICCSt. As has been shown before, there are several standards of evidence throughout the ICCSt concerning the beginning of an investigation (Art. 53 ICCSt): the issuance of an arrest warrant (Art 58 (1) ICCSt), and the confirmation hearing (Art. 61 (7) ICCSt).¹⁸⁵ Looking at these as a rising scale, the ‘reasonable doubt’ requirement would certainly be on the top of the scale, demanding the highest degree of proof.¹⁸⁶

Two other provisions are of interest in this regard. Art. 74 (2) ICCSt states that the decision can only be based on evidence which has been presented at the hearing.Page Id: 408References(p. 409)

The emphasis of this provision lies on the fact that the judges must rest their decision on the entire evidence which was presented.¹⁸⁷ Art. 74 (3) ICCSt further states that judges should attempt to achieve unanimity, but may also take a decision by majority. As has been said before, the majority rule is difficult with a view to the standard necessary in order to rebut the presumption of innocence.¹⁸⁸ For the reasons given above, unanimity, in particular as regards the question of guilt or innocence, is preferable.¹⁸⁹

c. Conduct of officials

Members of the ICC must under all circumstances refrain from utterances which would presume the guilt of the suspect. This is particularly true for the judges who must avoid casting any shadow on their independence and impartiality. As the ICC is an independent international institution itself, it is difficult for it to influence other bodies that might comment on the guilt of a suspect, as these are beyond the reach of the ICC. The same is true for the media. In a national context the executive branch of government is in a much better position to protect the accused from undue allegation prior or pending trial.¹⁹⁰ As with the UN Tribunals, the ICC can only influence other people or the media by putting strong emphasis on the respect for the suspect and on the importance of the presumption of innocence. Should the misconduct happen before the ICC, the contempt of court regime might be set into action.

4. Conclusion

The presumption of innocence in its three forms, onus of proof, standard of proof, and conduct of officials, is widely accepted as a general principle of criminal procedure and is complied with at international criminal courts only in parts. In particular as regards the reversal of the onus of proof on the defendant, the ICTY and the ICC go beyond the relatively lax approach which can be observed at the ECtHR. The ECtHR jurisprudence should not be adopted. As has been shown, the ECtHR operates on an overall fairness evaluation in order to respect the sovereignty of the national state. The situation at the ICC is different. Respect for the Member States’ sovereignty is not necessary in this regard.¹⁹¹ The ICC does not control domestic legal systems, but is in search of a procedural order which suits both efficiency and human rights.

Even if the formula that a conviction requires proof beyond reasonable doubt of the guilt of the accused is vague, it is a commonly accepted standard and should thus (p. 410) be adhered to. Yet extensive use of the possibility to pass judgments by majority, as foreseen in Art. 23 (2) ICTYSt and Art. 74 (5) ICCSt, must be guarded against. Proof beyond reasonable doubts means that all judges of the chamber should be convinced of the guilt of the accused.

Protection against attacks from the media is difficult to guarantee by international Tribunals.¹⁹² Tribunals do not have the ability and competences to influence other officials and the media apart from the ‘contempt of court’ regime.¹⁹³ The chambers do have the responsibility to behave in an impeccable way towards the accused, to emphasize the importance of the presumption of innocence as a general principle of criminal justice, and to demand the media to show respect for the human rights of the suspect.

VII. The principle of equality of arms

‘Equality of arms’ is a well-known international legal principle.¹⁹⁴ International courts have derived this principle from the fair trial requirement as contained in Art. 14 (1) ICCPR and Art. 6 (1) ECHR,¹⁹⁵ and have held that it is also implied in the ‘right to confront’ according to Art. 14 (3) (d) ICCPR and Art. 6 (3) (d) ECHR.¹⁹⁶ Scholars have attributed much force to this principle. It was seen as the minimum threshold requirement for any judicial proceeding to be considered fair and consistent with human rights: ‘Indeed, the duty incumbent upon international courts to secure equality and procedural balance between the parties is amplified when related to proceedings involving the protection of individuals.’¹⁹⁷

Also attempts were made to establish the equality of arms as the main structural principle of criminal procedure not only of the trial proceedings but also of the investigation.¹⁹⁸ At the very least it was determined as a pre-condition for any adversarial structured trial.¹⁹⁹Page Id: 410References(p. 411)

Despite its general acceptance and recognition, and despite its alleged metaphorical strength, the concept lacks clarity when applied to specific situations. Indeed it distorts other specific rights which are mentioned as rights of the accused in Art. 14 ICCPR or Art. 6 ECHR.²⁰⁰

Taken literally, the principle assumes a trial being similar to a fight, in which the parties need to be equipped with the same weapons in order for the battle to be considered fair. This image might be fitting to a private law action, where plaintiff and defendant stand on equal footing, but a criminal trial is surely shaped by a structural inequality between the state, represented by the prosecutor, and the citizen; that is; the accused.²⁰¹ Besides, the martial expression with reference to war and battle should be set aside as being unworthy of any liberal criminal procedural system. I would therefore prefer to abandon the principle altogether as it adds nothing to other much more precise rights, namely the right to be heard by the court or tribunal, the right to have adequate time and facility to prepare the defence, and the right to call and examine witnesses.²⁰²

In international criminal procedure the principle of equality of arms has played an enormous role. Thus the IMT in Nuremberg was heavily criticized, in particular by the German defence lawyers, as a mockery regarding equality of arms.²⁰³ Indeed, judging from the structural and quantitative data, the situation was almost grotesque: twenty seven senior and fifty four junior defence counsels defended twenty two accused and six accused organizations. In contrast the American delegation alone consisted of 2000 members, there were 170 British staff, twenty four Soviet personnel, and about a dozen French lawyers.

In modern international criminal trials, the situation is not much different, and we ought to ask ourselves what ‘equality of arms’ can mean under these circumstances.

1. Human rights law

The principle of equality of arms cannot be found expressis verbis in any of the major human rights codifications. Neither Art. 6 of the European Convention on Human Rights (ECHR), nor Art. 14 of the International Covenant on Civil and Political Rights (ICCPR) make reference to the concept. Yet it is generally (p. 412) accepted that equality of arms is a corollary to the right to a ‘fair trial’.²⁰⁴ The early jurisprudence of the European Commission on Human Rights took a rather formal approach to the principle of equality of arms interpreting it to comprise merely the defendant’s right to be heard, if the prosecution had the opportunity to present its case.²⁰⁵ In more recent decisions, the European Court of Human Rights has substantially expanded the remit of the equality principle. It has held that the right of the accused to confront a witness according to Art. 6 (3) (d) ECHR is based on the necessity to establish ‘full equality of arms’ between prosecutor and defendant regarding witness testimony.²⁰⁶ Similarly the defendant must be allowed to present a scientific expert in his/her favour if the expert witness, who has been named by the court or by the prosecutor, is not neutral.²⁰⁷

The principle of equality of arms has also ‘some application to the pre-trial proceedings’.²⁰⁸ The right to legal assistance during the questioning at the investigation stage is necessitated by the equality principle,²⁰⁹ as is the disclosure of inculpatory material in order to prepare for an effective defence at trial or for a habeas corpus appeal.²¹⁰ During the investigation, however, equality of arms cannot be seen as the governing principle, as this phase is inherently inquisitorial in nature. A fair balancing of powers is necessary only as far as the evidence gathering has prejudicial value to the later trial.

The ‘equality of arms’ principle as interpreted by the ECtHR is thus a mainly formal principle.²¹¹ Each party to the trial must have a chance to take notice of and comment on evidence and statements filed by the opposite side.²¹²

2. Tribunals

At the UN tribunals the principle of equality of arms has been recognized and applied in several cases. Both the ICTY and the ICTR have held that the equality of arms principle obligates a judicial body to ensure that neither party is put at a Page Id: 412References(p. 413) disadvantage when presenting its case.²¹³ Art. 20 (1) ICTYSt is to be interpreted according to Art. 14 (1) ICCPR and Art. 6 (1) ECHR. Thus the equality of arms principle is implied in the Tribunals’ respective Statutes.²¹⁴ As the responsibility for the observance of the procedural maxim lies with the judges, the principle applies only to circumstances within the control of the Tribunal.²¹⁵ Furthermore the Tribunals have ruled that it is one consequence of the equality of arms principle to give to the defence adequate time and facility for preparation of the defence.²¹⁶ In this context the ‘equality of arms’ principle is most prominently referred to with a view to disclosure rules, which aim at allowing the defence the same level of access to information as the Prosecutor.²¹⁷ The disclosure regime is discussed above.²¹⁸

Rule 85 (A) RPE ICTY illustrates a clear equality of arms in the presentation of evidence. This is the case because the defence is entitled to present its case in an identical manner to the Prosecutor. The defence is entitled to examine and re-examine its own witnesses, as is the prosecution.²¹⁹

Yet there is one major issue which is critical as regards the implementation of the principle of equality of arms in the law of the UN Tribunals: The visible structural inequality between prosecutor and defence, as has already been criticized in the Nuremberg trial.²²⁰

Taking note of the structural inequality of the prosecutor’s office on the one hand and the defence on the other, the Appeals Chamber rushes to add that ‘equality of arms’ does not amount to material equality between the parties in terms Page Id: 413References(p. 414) of financial and/or human resources.²²¹ The Appeals Chamber chose—again—a rather formal approach in saying: ‘The principle of equality of arms would be violated only if either party is put at a disadvantage when presenting its case. In the circumstances of this case, the Appeals Chamber finds that the Appellant cannot rely on the alleged inadequacy of funds during the pre-trial stage to establish such a disadvantage’.²²²

This approach has been rightly criticized as being premature and damaging the visibility of procedural fairness.²²³ Because of the gross inequality between prosecutor and defendant in their respective ability to prepare their case, it has been argued that the ICTY should adopt a more normative approach and abolish the formal interpretation of the principle.²²⁴ This would mean that the judges should take on more responsibility as regards the abilities of the defence, and should seek to influence the proceedings more actively. As the parties of the trial do not begin as direct equals, the desired equality has to be keenly and creatively constructed and the defence be brought to the same level as the prosecutor.²²⁵

What has also raised criticism is the tendency of the ICTY to reduce the scope of application of the principle of equality of arms in international criminal procedure compared to national procedural regimes. The reason given is the lack of means of execution on the side of international Tribunals. Whereas in national law the prosecuting authorities can rely on the police force to assist in executing orders and warrants, in international law prosecutors need to rely on state cooperation.²²⁶ Yet it remains unclear why the ICTY Appeals Chambers considers this to be an issue of inequality between prosecutor and defence. Rather it would seem that both parties, prosecution and defence, suffer from insufficient cooperation of national agencies.²²⁷ Besides, national courts prosecuting international crimes are confronted with exactly the same problem when evidence need to be collected abroad.

The jurisprudence of the ICTY is thus a good example for the unsuitability of the principle of equal arms for criminal trials. Because this concept is so unclear, it can be used against the interests of the accused in order to enhance the efficiency of the proceeding for the prosecution.Page Id: 414References(p. 415)

3. ICC

The ICC Statute, based on the experiences of the ad hoc Tribunals, must be read as incorporating the principle of equality of arms in Art. 67 ICCSt.²²⁸ Equality is addressed in the Statute regarding the disclosure rules in Arts 64 (3) (c) and 67 (2) ICCSt.

A major achievement has been reached in the pre-trial phase. The Pre-Trial Chamber will assist the suspect and the defence counsel in gathering evidence by issuing orders and warrants as necessary according to Art. 57 (3) (b) ICCSt. The right to have adequate time and facilities to prepare for the defence as enshrined in Art. 67 (1) (d) ICCSt is thus made operational.²²⁹ Even if the defence is not an organ of the court—in contrast to the Prosecutor—the Chambers must and will provide assistance regarding the preparation of the defence. The ICCSt to a certain extent heals the criticism which was brought forward against the UN tribunals as discussed above and assigns to the Chamber a much more active role in furthering the defence interests.²³⁰ However, ideally this power should not be invoked too often, as it would seem unnecessary as long as the prosecutor fulfils his/her obligation according to Art. 54 (1) (a) ICCSt as an objective organ of the court, collecting both incriminating and exculpating evidence.

In contrast, it has been said that Art. 99 (4) ICCSt contains a blatant breach of the equality of arms principle. The power to conduct onsite investigations under the Cooperation Regime of Part IX pertains only to the Prosecutor whereas the defence cannot compel a state to cooperate.²³¹

For the time being the ‘equality of arms’ principle has not been made an issue in the jurisprudence of the ICC. It will, however, as soon as more cases are brought to the trial stage.

4. Conclusion

‘Full equality between parties to criminal proceedings is an idle aspiration from a practical perspective’, as stated in Zahar/Sluiter.²³² It is probably not even that. Equality should not even be intended. Due to the enormous differences in their respective positions, their procedural functions, their interests, and their resources, equality as regards ‘procedural weapons’ would simply not be enough. It is preferable (p. 416) to refer a high amount of protection to the defendant by enhancing the rights of the accused and have these safeguarded by the judges.

The constant struggle between Prosecutor and Defence, between crime control and due process, gives the duty to observe and preserve an equal equilibrium to the judges. Their main interest should be to assist the defence and ‘show [themselves] extremely willing to assist the defence in gaining access to witnesses, wherever possible’.²³³

Even if the concept of equality of arms has been widely used in criminal law cases, it has no place in criminal procedure, as it has thus far been of no service in developing a precise structural concept which would enhance the fairness of the trial, and it has not been seen to add any value to the procedural problems international Tribunals are facing. Yet the principle itself continues to be praised: ‘It is general and undisputed opinion that “equality of arms” is a key element of the due process of law.’²³⁴

I doubt that equality of arms is or even could be a key element of trial fairness. Quite the contrary is true. Equality of arms does not add anything to existing rights of the accused, which are contained not only in the major human rights treaties but also in Art. 67 ICCSt, Art. 20 ICTYSt, and Art. 19 ICTRSt. The right to be heard, the right to have adequate time and facility to prepare the defence, and the right to call and examine witnesses are the key rights for a fair trial.²³⁵ Relating these rights to a higher principle of equality of arms runs the risk that these rights will in fact be restricted, as has been the case at the ICTY through the purely formal interpretation of equality.²³⁶

Furthermore its military wording implies a trial which consists of a battle between prosecutor and defence.²³⁷ Resembling a real fight or a ‘trial by ordeal’ of ancient times²³⁸ is unseemly for a liberal criminal law and incompatible with the presumption of innocence.

VIII. Immediate trial

Immediacy of the trial is one of the principles pertaining to the law of evidence. The evidence presented at trial should always be the one most proximate to the (p. 417) actual event and relate to the facts of the case directly. Indirect or mediated evidence is not as reliable as direct and immediate evidence. This principle furthermore implies that the trial is the core of the quest for the truth. Pre-trial stages such as investigation or confirmation are preparatory parts of the prosecution process and do not carry the same weight as the trial. Therefore, a witness has to testify at trial even if s/he has previously delivered his or her testimony before a prosecutor. The most prominent expression of this principle is to be found in Sec. 250 of the German Code of Criminal Procedure: ‘If the evidence is based on what a person has seen or heard, this person must be examined during the main hearing. The examination shall not be replaced by the reading of a record of a prior examination or a written statement.’

In Nuremberg, the prosecution case rested mainly on documentary evidence and only a few witnesses testified. Several witness statements were furthermore introduced into the trial by way of affidavit. This is, in general, contrary to the principle of an immediate trial. However, this course of action was justified by the enormous amount of unequivocal direct documentary evidence produced by the prosecutors proving the guilt of the accused that it seemed unnecessary to hear more witnesses than strictly necessary.²³⁹

In modern criminal procedure the principle of an immediate trial is largely contested by the question of whether hearsay evidence is admissible or not. Hearsay witnesses cannot testify on the actual facts of the case according to their own perception, but can report what someone else told them. This kind of testimony is thus indirect. In Anglo-American criminal procedure such a witness is, in general, excluded from entering the witness box, whereas in Continental Europe there is no such exclusionary rule.²⁴⁰ Yet there is the principle of an immediate trial which permits tackling hearsay from a different angle.

1. Human rights law

In human rights law we do not find a positive codification of the principle of an immediate trial. The issue is mostly discussed in connection with the right to confrontation according to Art. 14 (3) (e) ICCPR and Art. 6 (3) (d) ECHR and with hearsay evidence. Neither the ICCPR nor the ECHR exclude hearsay evidence on a general basis. They are concerned mainly with whether the proceeding was fair in its entirety and whether the accused had a chance to defend him or herself. The right to confrontation is a vehicle of fairness, which says that the defendant must have had the opportunity to pose questions to the witness. A direct confrontation with the witness is however only feasible if the witness (p. 418) himself is present. The right to confrontation thus presupposes the principle of the immediacy of the trial. We will come back to the consequences of this principle for the law of evidence later.

2. Tribunals

There is no explicit mentioning of the principle of immediacy in the Statutes and Rules of the Tribunals. Yet several norms and decisions deal with issues related to this principle. In particular hearsay evidence, that is, ; indirect evidence, has caused a whole list of decisions. It is therefore a general rule that witnesses need to testify in the presence of the accused, see Rule 89 (F) ICTY RPE, Rule 90 (A) ICTR RPE. The Trial Chambers have made clear that the right to confront the witness according to Art. 21 (4) (e) ICTYSt and Art. 20 (4) (e) ICTR RPE can only be duly exercised if the witness is a direct witness. With a hearsay witness, cross-examination cannot help to test the reliability of the testimony.²⁴¹ In that case the chamber must scrutinize the probative value of the statement in a special way.²⁴² We can conclude from these decisions that the ad hoc Tribunals prefer direct evidence to indirect evidence, and thus accept the principle of immediacy of the trial.²⁴³

However, for the purpose of expediting proceedings, the ICTY has accepted many exceptions to this general rule as the judges were often satisfied with written testimony.²⁴⁴

3. ICC

The Rome Statute anticipates the immediacy of the trial in Art. 69 (2) ICCSt explicitly, when it states: ‘testimony of a witness will be given in person’. Yet this general rule is followed by a number of exceptions, including audio and video broadcasting, recorded evidence, or even written statements. The parameters of how to apply these exceptions are not laid down in the Statute and raise some doubts.²⁴⁵ Nevertheless, the general principle must be observed, which is expressed by the fact that the final sentence of Art. 69 (2) ICCSt refers to the rights of the accused which must be respected.Page Id: 418References(p. 419)

One of these is the right to confrontation, which is worded in the same way as in the major human rights treaties. In Art. 67 (1) (e), the first sentence is identical with Art. 14 (3) (e) ICCPR. However, hearsay evidence is not excluded on a general basis. On the contrary, the presiding judge is in a position to determine the ‘mode and order of questioning witnesses and presenting evidence’ according to Regulation 43 RegC. Cross-examination may be feasible but is not obligatory, as is made clear by the wording of Rule 140 (2) RPE ICC.

4. Conclusion

The principle of the immediacy of trial stems mainly from the German legal system. It is not mentioned explicitly in the human rights treaties nor in the Statutes of international courts and Tribunals. Yet it is implied in several other norms, in particular the right of the accused to confront the witness against him/her. To test the reliability of the witness by questioning is not possible in the case of an indirect witness; that is, a hearsay witness. We conclude therefore that there is a general principle that the trial must be based on direct, that is, immediate evidence. This does not mean that judges are generally forbidden from hearing indirect testimony. Yet if they do, the violation of the principle of the immediacy of the trial must be counterbalanced by strict necessity and compensated by a reduced probative value of the testimony in question.

The principle of the immediate trial serves the procedural truth finding as it forces the prosecution to present the best and most reliable source; that is, the direct witness. At the same time it enables the public and oral trial. Therefore, the judgment can only be based on evidence which was presented and discussed at the hearing.²⁴⁶ The right to confront the witness puts the accused on a similar footing with the prosecutor. It is thus a guarantor of a ‘fair trial’.

The principle of the immediacy of the trial unfolds at the hearing of the evidence at trial. It influences the questions of when and how hearsay evidence can be admissible, of how to deal with both deceased and most vulnerable witnesses. These topics will be discussed later.

B. Preparing for Trial

As soon as the President of the ICC constituted a Trial Chamber for a case according to Art. 61 (11) ICCSt and Rule 130 RPE, or assigns a case to a previously constituted Trial Chamber according to Art. 64 (3) ICCSt, the process enters its trial stage.²⁴⁷ But before the trial itself starts, there is an interim stage which serves (p. 420) as preparation of the trial proceeding. The preparation for trial is in itself a part of the trial process and should not be mistaken for the pre-trial stage. Whereas at the pre-trial stage the topic of the later trial is carved out and finally confirmed by a Pre-Trial Chamber, the Trial Chamber is now called upon to guarantee the ‘fair and expeditious conduct of the proceedings’ (Rule 132 PRE). The preparation for trial thus serves the proper management of the process and helps avoid excessive delays of the proceedings.

Looking at the cases which have reached the trial stage at the ICC to date it is rather obvious that what has been named an interim stage can be a rather arduous and long struggle between the Chamber and other participants. For example, in the Lubanga case, the charges were confirmed on 29 January 2007 but the trial did not open until 26 January 2009 almost two years later. In Katanga and Chui, the trial opened on 24 November 2009, fourteen months after the Confirmation decision of 26 September 2008, and Bemba’s trial was opened on 22 November 2010, some seventeen months after Confirmation of 15 June 2009.

The method of doing this is the ‘status conference’, which is envisaged as a mandatory exercise of the Trial Chamber in Rule 132 (1) RPE ICC. Despite this, however, the concept of ‘preparation for trial’ remains rather open. This is the case despite the fact that the question of who manages the case, how it is to be managed, and to what extent it is to be managed, touch upon the heart of the criminal trial process: the role of the judge. The more the judge takes responsibility for the conduct of the trial and does not leave it entirely up to the prosecution and the defence to present their respective cases, the more the judges need to know about the facts of the case and about the evidence. This knowledge, however, changes the position of the trial judges dramatically. We will come back to these questions shortly.

Before looking at the ICC, we turn to look at the practice of the UN Tribunals. The concept of pre-trial conferences was developed there and will without doubt influence the ICC.

The pre-trial phase at the ICTY differs hugely from that of the ICC. After a modest confirmation process (see earlier Chapter 7), the original intention of the ICTY drafters was that the trial chamber should conduct the trial on the basis of the indictment. Yet as with the Rome Conference and the adoption of the ICCSt, the judges at the ICTY amended the RPE ICTY and introduced a Pre-Trial Judge and Pre-Trial Conferences. In July 1998 Rules 65bis, 73bis, and 73ter RPE ICTY were introduced, Rule 65ter followed in 2000.Page Id: 420References(p. 421)

According to Rule 65bis (1) ICTY RPE Status Conferences are mandatory even 120 days after the initial appearance of the accused at the Tribunal and are held by either the Pre-Trial Judge or the Chamber.²⁴⁸

For the pre-trial procedure a Pre-Trial Judge (PTJ) is being appointed according to Rule 65ter RPE ICTY. S/he is under a duty to construct a ‘work plan’ containing terms and obligations of parties and time limits. The ‘work plan’ supervision is delegated to a Senior Legal Officer, who confers with the parties and reports to the PTJ and back to the parties.²⁴⁹

The prosecutor is obliged to file: (i) a final version of the pre-trial brief, (ii) a list of the prosecution witnesses, and (iii) a list of the exhibits the prosecution intends to rely on as evidence according to Rule 65ter (E) RPE ICTY.

Similarly, the defence must file a pre-trial brief addressing both factual and legal issues according to Rule 65ter (F) RPE ICTY. The defence must also set out the general nature of the accused’s defence, and is obliged to identify the matters in the prosecutor’s pre-trial brief, which the defence disputes and give reasons for disputing. A witness list and the defence exhibits must only be submitted after the closure of the prosecution case by virtue of Rule 65ter (G) RPE ICTY.

In case of non-compliance with their respective pre-trial obligations Rule 65ter (N) RPE ICTY foresees sanctions to be imposed by the Trial Chamber, for example, the exclusion of evidence from trial.

On the basis of the pre-trial briefs, the PTJ according to Rule 65ter (H) RPE ICTY classifies the issues both factual and legal as disputed and undisputed. S/he may consult with the parties in order to avoid misunderstandings, Rule 65ter (I) PRE ICTY, when putting together his/her record, which is then transferred to the Trial Chamber, including transcripts, minutes of the meetings, and prosecution and defence filings, Rule 65ter (L) RPE ICTY.

This file, assembled and presented by the PTJ, will be the basis of the Pre-Trial Conference which convenes on invitation by the Trial Chamber in order to prepare for trial according to Rule 73bis RPE ICTY, which found its present form on 17 July 2003 and was supposed to be the most efficient tool for the management (p. 422) of the proceedings.²⁵⁰ The Trial Chamber may limit the number of witnesses²⁵¹ and determine the time available for examination; indeed, the Chamber has the power over the information available to it through the file to reorganize the prosecution case according to its own evaluation of the case and reduce the number of counts.²⁵² The same procedure will be adopted mutatis mutandis regarding the defence case in the Pre-Defence Conference according to Rule 73ter RPE ICTY.

The ICTY law thus shows an unmistakable deviation from the common law approach of a passive judge.²⁵³ The judge gains the role of a trial manager and controls the preparation of the trial in order to expedite proceedings.²⁵⁴

This development is also mirrored in the law of the ICTR and the SCSL. According to Rule 65bis RPE SCSL/ICTR, the Trial Chamber or a designated PTJ may call a status conference with the aim of expediting trial proceedings. To that end Rule 73bis RPE SCSL/ICTR obliges the Trial Chamber or PTJ to hold a pre-trial conference at which the prosecution may be ordered to file a prosecution pre-trial brief on the facts and the law of the case, a statement of matters contesting both fact and law together with a list of prosecution witnesses and exhibits.²⁵⁵ The prosecution may even be ordered to provide copies with written statements of each prosecution witness. As a consequence the Trial Chamber can reduce the estimated time allowed for each prosecution witness and reduce the number of prosecution witnesses. The defence is put under a similar obligation, and a Pre-Defence Conference takes place according to Rule 73ter RPE SCSL/ICTR.

The Tribunals thus have set into place a system which is well equipped to distil only matters in dispute in advance of the trial and prepare for litigation. Yet it seems that the potential for speeding up the lengthy proceedings dormant in these rules are seldom invoked.²⁵⁶ This might be due to the fact that the judges are more or less rooted in common law practice, which is generally hostile towards judges’ involvement in the planning of the trial. It might also be due to the fact that the Page Id: 422References(p. 423) ICTY judges are widely inexperienced regarding the role of the PTJ and are thus reluctant to rely on his or her services.²⁵⁷

At the ICC, the Trial Chamber is under the obligation to organize the trial. Art. 64 (3) ICCSt expresses precisely this in three different ways:

(a) the Chamber needs to confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings,
(b) determine the language or languages to be used at trial, and
(c) provide additional disclosure if necessary.

The question of disclosure of evidence has been dealt with in a separate chapter (Chapter 7). The determination of the languages to be used is connected to Art. 50 ICCSt and Rule 41 RPE ICC pertaining to the working languages only.²⁵⁸ The right of the accused to be informed of the charges in a language s/he fully understands and speaks remains untouched by the decision as to the working languages.

In the following we will focus on the first of the named issues: the obligation of the Trial Chamber to communicate with parties in order to manage and organize the trial in such a way that the proceedings will be fair and expeditious. This communication is dependent on four different issues: (I) its formal method seems to be embodied in the so-called Status Conference; (II) however the parties have the option to submit motions to the chamber and thus communicate their interests to the judges; (III) apparently the ‘record’, which has been collected during pre-trial phase by the Registry, in particular of the confirmation hearing, plays an important role; (IV) finally, the Trial Chamber has the power to join or sever proceedings against more than one accused according to Art. 64 (5) ICCSt.

I. Status conferences

The Statute does not mention the term Status Conference, but in the Rules of Procedure and Evidence we find a differentiation between two types of Status conferences: (a) a mandatory Status Conference concerning the setting of the date for trial according to Rule 132 (1) RPE ICC, and (b) other Status Conferences which may be held in order to facilitate the fair and expeditious conduct of the proceedings according to Rule 132 (2) RPE ICC. As we will see, the practice at the ICC does not follow this rather artificial and inefficient differentiation.(p. 424)

As regards the form of the Status Conference, Regulation 30 RegC gives broad discretion to the judges. Therefore, a Status Conference might take the form of a hearing but it could also take the form of a written procedure, where the participants submit written statements to the Chamber.

1. Mandatory Status Conference

The only issue to be discussed at the mandatory Status Conference is the date of the trial. This conference has to be held ‘promptly’ after the case has been referred to the Trial Chamber. It is unclear who is invited to participate. Whereas it is obvious that the Prosecutor and the defendant have to attend as the main actors in the trial, it is questionable whether victims and their representatives or state representatives should also take part.²⁵⁹

According to the wording of Rule 132 (1) RPE ICC, it is more likely that other participants of the trial hearing need to absent themselves from this conference. These participants are merely informed of the trial date, and cannot influence the date or ask for postponement.

2. Other Status Conferences

Other questions concerning the organization of the trial apart from the date are to be dealt with in a separate Status Conference according to Rule 132 (2) RPE ICC. A lengthy but not exhaustive list of possible issues to be discussed during such a conference is contained in Regulation 54 RegC, which states:

Regulation 54 Status conferences before the Trial Chamber

At a status conference, the Trial Chamber may, in accordance with the Statute and the Rules, issue any order in the interests of justice for the purposes of the proceedings on, inter alia, the following issues:

(a) The length and content of legal arguments and the opening and closing statements;
(b) A summary of the evidence the participants intend to rely on;
(c) The length of the evidence to be relied on;
(d) The length of questioning of the witnesses;
(e) The number and identity (including any pseudonym) of the witnesses to be called;
(f) The production and disclosure of the statements of the witnesses on which the participants propose to rely;
(g) The number of documents as referred to in article 69, paragraph 2, or exhibits to be introduced together with their length and size;
(h) The issues the participants propose to raise during the trial;(p. 425)
(i) The extent to which a participant can rely on recorded evidence, including the transcripts and the audio and video record of evidence previously given;
(j) The presentation of evidence in summary form;
(k) The extent to which evidence is to be given by an audio- or video-link;
(l) The disclosure of evidence;
(m) The joint or separate instruction by the participants of expert witnesses;
(n) Evidence to be introduced under rule 69 as regards agreed facts;
(o) The conditions under which victims shall participate in the proceedings;
(p) The defences, if any, to be advanced by the accused.

It is obvious that the judges were inspired by the practice of the UN Tribunals, when drafting this list, and they added a few more topics. The ICC judges have added at least one more: the condition of the detention of the accused.²⁶⁰ The power of the judges to manage the trial proceeding pertains not only on structural or quantitative questions as to the lengths or the statements, and the number of documents but embraces also the definition of issues to be discussed—including ‘defences’ to be advance by the accused,²⁶¹—the manner of the presentation of the evidence, and the form of participation by the victims. Even if the power of judges to limit the number of witnesses of the parties or the crime sites is missing from this list, the authority to do so could still be based on Regulation 54 RegC.²⁶² Given the fact that the Pre-Trial Chamber should already have made the case manageable during the confirmation of the charges, a further reduction of any aspect of the case should not be necessary. If the practice at the ICC proves differently and the Pre-Trial Chambers fail to shape cases appropriately, the Trial Chambers will take over this responsibility.

Whereas Rule 132 (2) RPE ICC speaks only of the ‘parties’, that is, defence and prosecution, who are invited to participate in Status Conferences, Regulation 54 RegC interprets the Rules in a broad way, referring to ‘participants’ instead. Looking at the list put forward, it would make sense to allow victims’ representatives to be present at the conference, as their position might be an issue.²⁶³ Also representatives of states could take part in the Status Conference, if specific state interests are of concern. These might be²⁶⁴ questions of admissibility and jurisdiction, the protection of agents or servants, and confidential information, including matters of national security. Furthermore, it might be sensible to have the Registry Page Id: 425References(p. 426) present at the Conference in order to resolve any technical issues, such as problems with IT or translations. The Office of the Public Counsel for Victims should also be invited to participate.

3. Evaluation

The Status Conference is an important tool to prepare for the trial. It should be used in order to achieve as much clarity as possible on disputed issues. Possibly the gravest difficulty for an international trial is the vast amount of information available combined with multiple charges. As has been argued, the pre-trial phase should be used to determine the topic of the trial and to shape the charges accordingly. At the trial phase the main focus should be on the actual management of the presentation of evidence, yet this obligation is not on the Trial Chamber alone. The Prosecutor representing the public interest is also obliged to attain clarity, as s/he is bound by the principle of a speedy trial.²⁶⁵ It is difficult when parties throw as much material as possible at the Chamber, and expect the judges to ‘sort it out’.²⁶⁶

It is highly inefficient to have several and separate conferences for the date and for other issues. The judges should use their inherent powers to organize the trial and the preparation for trial and combine the question of the setting of the date with other issues as to the management of the proceedings. Under these circumstances it would be advisable to adopt the rather informal approach, which is mirrored in Regulation 30 RegC regarding the conduct of the Status Conferences, in order to gain as much positive effect for the organization of the formal presentation of evidence, and thus help speed up the proceedings.

Looking at the Status Conferences which have taken place at the ICC thus far, it becomes obvious that the judges indeed take this liberty and unfold a rather result-oriented approach to the Status Conferences. From the first Status Conference in the Lubanga case, assembled by Trial Chamber I, the English Judge Fulford presiding, on 4 September 2007 onward, the question of setting a date has been connected to other issues regarding the investigation, disclosure and so on. Indeed, it appears that it might be impossible to discuss a specific date before these other questions have been solved. The Chambers have also developed a practice of issuing a list of questions they would like to see addressed at a Status Conference to the participants.²⁶⁷

Looking at the ICC practice adopted by the Trial Chambers, Status Conferences are widely used and often take more time than initially assumed.

II. Pre-trial motions

Another and more formal way to communicate between the parties and the Chamber are pre-trial motions.²⁶⁹ The law at the ICC foresees a variety of such motions as follows.

The parties may request postponement of the date of the trial according to Rule 132 (1) RPE ICC. The date is set by the Chamber, and must take due regard to the right of the accused to adequate time for preparation, the efficiency of the proceedings, and the principle of a speedy trial.

According to Rule 133 RPE ICC motions challenging admissibility of the case of jurisdiction of the ICC can be raised by the accused, by a state, which has jurisdiction over a case, or by the Prosecutor according to Art. 18 and 19 ICCSt.²⁷⁰ Such motions shall be heard and decided first according to Rule 58 (1) RPE ICC.²⁷¹

Most relevant for the preparation of the trial proceedings is Rule 134 (1) RPE ICC. The prosecutor or the defence may raise any issue concerning the conduct of the proceedings on which the applicant wishes a decision to be made by the Trial Chamber. The procedure to be applied in dealing with such a motion is adversarial in nature; that is, the ‘opposite’ party has to have the opportunity to file a response.Page Id: 427References(p. 428)

According to Rule 134 (2) RPE ICC the Prosecutor and the defence may raise objections or present observations on proceedings conducted after the confirmation hearing. Any issue that took place before that must be raised before the Pre-Trial Chamber and cannot be invoked later; see Rule 122 (4) RPE ICC.²⁷²

At this point, and following thorough scrutiny of the prosecution’s case, the defence might request further investigation be conducted or further evidence be produced by the Trial Chamber by virtue of Art. 64 (6) (d) ICCSt.²⁷³ As the Court is not obliged to extend the presentation of evidence on any matter that is relevant for the finding of the truth, but has the authority to order the production of evidence, the onus is on the defence to point out to the Chamber relevant factors which are missing in the Prosecutor’s case. It might be detrimental to the interests of the defence that the Prosecutor has a right to file a response and possibly persuade the judges of the irrelevance of the material requested by the defence.

Finally, the Chamber may also rule on the question of expert evidence.²⁷⁴ According to Regulation 44 (2) RegC, the Chamber may direct the joint instruction of an expert by both the defence and the prosecution. After receipt of an expert report, a party may request the instruction of a further expert by virtue of Regulation 44 (3) RegC.

These motions, after all, refer to issues which might be dealt with in a Status Conference. The Chambers should invite participants to contribute to a Status Conference and try to issue the necessary orders en bloc. This would enhance transparency of the proceedings and add to the speeding up of the trial. This appears to be the case, as can been seen from the tactics adopted by the ICC Trial Chamber thus far.

III. Record

As has been said, one of the main differences between Continental European and Anglo-American criminal procedure is that the former relies mainly on a ‘dossier’, which is known to the professional judges and serves as a basis for the proceeding and the presentation of evidence, whereas the latter relies on the parties for the presentation of evidence and prefers the judge to be unaware of the facts of the case prior to the hearing.

Whereas nowhere in the Rome Statute is the Prosecutor obliged to put together a ‘file’ containing all the facts and evidence of the case, the Registry builds up a ‘record’ of the proceedings (Regulation 21 RegR), which at the end of the day resembles a ‘file’ akin to Continental practice, and this is used in the preparation for trial.(p. 429)

According to Rule 121 (10) RPE ICC ‘the Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule’. Amongst these documents is all the disclosure material, which becomes part of the record by virtue of Rule 121 (2) RPE ICC. At this stage, the fate of the record is rather simple as it can be of service to the Prosecutor, the person charged, and the victims or their legal representatives, to the extent they are permitted to the proceedings pursuant to Rules 89 to 91 RPE ICC. These participants may consult the record and thus be informed for the confirmation hearing according to Rule 121 (10) RPE ICC.

At the end of the confirmation process, the Registry will have collected everything that was material to the pre-trial phase and placed it into the record. Next, the Presidency refers the case to a Trial Chamber according to Rule 130 RPE ICC. However, together with this referral the entire record maintained by the Registrar is transmitted to the Trial Chamber, as is ordered by Rule 130 RPE ICC.²⁷⁵

Whereas the record may help the Prosecutor, the defence, the victims, and their representatives, as well as representatives of states participating in the proceedings prepare as they may consult the record according to Rule 131 RPE ICC, it is doubtful what happens to the record in the Trial Chamber; this is not mentioned in Rule 131 RPE ICC.²⁷⁶ Are the judges allowed to use the record for the preparation of the trial proceeding? The ICC law is deliberately silent in this regard.²⁷⁷ What would be the pros and cons of allowing the record to be so used?

A judge who knows the facts of the case is certainly in a better position to manage the case. S/he can make his or her independent judgment on the focal points of the facts, the evidence, and the law, and does not depend on what the parties tell him. Having knowledge of the facts and circumstances would put the judge in a much better position to evaluate the urgency of victim or witness protection or other confidentiality issues.

But how independent is the information the judges receive through the record? As the record pertains to the confirmation process, it will certainly have an emphasis on the incriminating evidence.²⁷⁸ It might even be that for some tactical reasons, the defence did not raise any objection during the confirmation stage at all. Consequently, the record will be rather one-sided. If the judges base the trial (p. 430) on such a biased pool of information, it could be argued, that this would result in a violation of the principle of presumption of innocence.²⁷⁹

However, to expose the judges to materials yet to be presented in evidence does not necessarily lead to pre-judgement or partiality on their side. The professionalism of the judges is a guarantee that the presumption of innocence will be respected.²⁸⁰ Furthermore, it seems that the Rome Statute’s approach towards an active judge who may order the production of evidence proprio motu (Art. 64 (6) (d) ICCSt), warrants a judge who has greater responsibility for the finding of the truth and should thus have enhanced knowledge of the facts and circumstances of the case. As has been said, this knowledge could also work as a form of control of the prosecutor.²⁸¹ The case against Lubanga has shown that such control is important and necessary.

Balancing the pros and cons regarding the question of whether the judge should have knowledge of the record, the answer has to be ‘yes’.²⁸² As long as the judges are aware of the circumstances of how the record came about, one should trust their professionalism. Also, if it is true that the judge is working towards finding the truth together with prosecutor and defence, all should progress towards this goal at the same speed. Consequently, the record does indeed fulfil a similar function to a ‘file’ in a Continental prosecution.

There is one final issue to be addressed. The record pursuant to Rule 121 (10) RPE ICC pertains only to the proceedings before the Pre-Trial Chamber. But what happens to evidence which was disclosed after the date of the confirmation decision? Will this be included in the record or is the record incomplete and thus unreliable?²⁸³

The answer is to be found in Rule 137 RPE ICC, headed ‘record of the trial proceedings’. According to this rule, the Registrar makes and preserves a full and accurate record of all proceedings. As the wording of the rule embraces ‘all proceedings’ it is submitted that this can only mean that the Registrar continues to service the record, stemming originally from the confirmation proceeding, and adds new material to it as the proceedings progress. As ‘all proceedings’ are to be covered, material which is being disclosed after the confirmation decision should be made part of the record.Page Id: 430References(p. 431)

The practice at the ICC has developed in that direction, yet with one caveat. The obligation to record the evidence disclosed after the confirmation pertains only to incriminating evidence presented by the Prosecutor. Potentially exculpatory material and the Rule 77 material are only disclosed to the defence upon notification to the Chamber but not filed to the record.²⁸⁴

We can thus conclude that in principle a Continental style ‘file’ has been developed at the ICC by means of the record, yet it results in an ‘attenuated’ record regime, focusing on incriminating evidence.

IV. Joinder and severance

International criminal law and procedure has to deal mostly with crimes involving several suspects and multiple charges.²⁸⁵ As the situational context is similar, it might be both efficient and wise to try several people in one trial. It is more efficient because the presentation of evidence concerning circumstantial questions will be valid for several accused at the same time and duplications could be avoided, while witnesses and victims are being spared the distress of attending several trials; it is wise as the political environment, the number of the crimes and, indeed, the entire panorama of the incidents will come to light more easily than in the case where only isolated offences are being discussed.²⁸⁶

The Nuremberg Trial against the major German war criminals is a good example in this regard. The allied powers had assembled twenty four persons who should be held responsible for crimes that could not be attributed to a specific geographical setting and would thus have to be tried by common enterprise. This policy was developed in the Moscow Declaration in November 1943, made between Roosevelt, Churchill, and Stalin. As a result the charges covered a rather wider range from crimes against peace and crimes of conspiracy, to incitement to commit war crimes and crimes against humanity, to the forced labour programme. Under modern circumstances such a trial could never be concluded within a year, as was the Nuremberg trial, lasting from 20 November 1945 to 1 October 1946. In the subsequent trials—which we have seen were not international trials strictu sensu—the accused were pooled by their professional positions,²⁸⁷ the types of crimes,²⁸⁸ or the location of the crimes charged.²⁸⁹Page Id: 431References(p. 432)

Nowadays, the complexity of both the incidents and the procedure often advise against a joinder of several cases. A case with too many persons involved will turn out to be unmanageable and at the end prove to be inefficient.²⁹⁰

Thus, it is necessary for reasons of efficiency and fairness to be able to both join cases and sever cases as seems adequate. In international criminal procedure there are provisions foreseeing both concepts.

1. Joinder

At the UN Tribunals one can differentiate two strategies. (1) the concept of indicting more than one accused, and (2) joining trials of multiple accused charged under different indictments. Concept (1) is specifically authorized by Rule 48 RPE ICTY/ICTR and Rule 48 (a) RPE SCSL. The ICTY and ICTR followed this road frequently.²⁹¹ The few accused at the SCSL were indicted separately but joined later invoking concept (2). The relevant legal question is, according to Rule 48 RPE ICTY/ICTR, whether the events relate to the same ‘transaction’. According to Rule 2 (A) RPE ICTY a transaction is defined as: ‘a number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan’.

Sometimes suspects would be indicted in separate instruments, because investigations developed at a different speed or the policy of transferring suspects to The Hague would necessitate a differentiated strategy, and the Prosecutor would later request the merger of two or more indictments into a single joint indictment as the basis of a single trial against several accused persons. Of course, also the Completion Strategy urged the Tribunals to combine cases.²⁹²

The test the chamber reviewing the request to joinder would be as follows: (1) do the rules allow the joinder of the indictments; that is, do the events prima facie relate to the same ‘transaction’ according to Rule 48 RPE ICTY/ICTR,²⁹³ and (2) should the Chamber nevertheless deny joinder according to its discretion? This discretion was exercised by submitting to the following parameters:

(a) the joinder of the Accused would avoid duplication of the presentation of evidence related to underlying crimes and to some extent to the criminal responsibility of several of the Accused; minimise hardship to witnesses; and would be in the interests of judicial economy, since, on the basis of the Prosecution’s submissions, the Page Id: 432References(p. 433) length of one joint trial is likely to be significantly shorter than the combined period necessary for two separate trials;

(b) that no basis has been identified for concluding that joinder would create a conflict of interest or otherwise prejudice the right of any of the Accused to a fair and expeditious trial, and no basis has been advanced to persuade the Trial Chamber that it is not able to manage the conduct of a joint trial adequately; moreover, the Trial Chamber is confident that by applying existing Rules of Procedure and Evidence, it will be able to ensure to the Accused a fair and expeditious trial;

(c) that there is no indication that a joint trial could not start in December 2005 or January 2006, the anticipated date for the start of trial in the Milutinovic et al. case.²⁹⁴

Operating with a considerably smaller number of accused, the SCSL has combined the indictments into three trials altogether relying on similar argument as developed by the UN Tribunals.²⁹⁵

According to Art 64 (5) ICCSt the Trial Chamber at the ICC has the proprio motu authority to join or sever proceedings in respect of charges against more than one accused. It has been held that the ICC will consider the practice at the UN Tribunals in particular Rules 48 and 72 RPE ICTY when applying this provision.²⁹⁶ Indeed, in the sole decision on joinder made to-date in the case against Katanga and Chui,²⁹⁷ the Chamber applied the same factors that were emphasized by the Tribunals and the SCSL.²⁹⁸

The allegations against the two suspects pertain to the same incident, the joint attack on the village of Bogoro. Furthermore, the Pre-Trial Chamber relied on its threefold obligation to: (a) take appropriate measures to protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses pursuant to Arts 57 3(c) and 68 of the Statute, (b) to respect the rights of the accused according to Art. 67 ICCSt and (c) to guarantee fair and expedited Page Id: 433References(p. 434) proceedings.²⁹⁹ On this basis the Pre-Trial Chamber developed the following check-list:

(i) joinder enhances the fairness as well as the judicial economy of the proceedings because, in addition to affording to the arrested persons the same rights as if they were being prosecuted separately, joinder:
1. (a) avoids having witnesses testify more than once and reduce expenses related to those testimonies;
2. (b) avoids duplication of the evidence; and
3. (c) avoids inconsistency in the presentation of the evidence and would therefore afford equal treatment to both arrested persons;
(ii) joinder minimises the potential impact on witnesses, and better facilitate the protection of the witnesses’ physical and mental well- being; and
(iii) concurrent presentation of evidence pertaining to different arrested persons does not per se constitute a conflict of interests.³⁰⁰

In weighing these interests against the general prevalence of the Statute in favour of joint trials, the Chamber decided to proceed accordingly and combine the trials of the two persons as the defence could not establish inappropriateness of the joinder in these cases.³⁰¹

2. Severance

As regards severance of trials Rule 136 RPE ICC foresees that those jointly accused shall be tried together unless the Trial Chamber orders separate trials in order to avoid serious prejudice to the accused, to protect the interests of justice, or because one accused has made an admission of guilt in accordance with Art. 65 ICCSt. This rule has been interpreted by the Pre-Trial Chamber in Katanga and Chui as forming the presumption in favour of joint proceedings.³⁰²

At the Tribunals similar rules applied, see Rule 82 RPE ICTY/ICTR/SCSL. Most requests for separate trials have been denied because chambers see the interests of justice best protected by joint trials.³⁰³ Severance was ordered, however, if due to ill health of one of the co-accused the trial would be delayed considerably and would thus conflict with the right of the other co-accused to be tried without undue delay.³⁰⁴ A similar situation might arise, if one or more of the accused were not Page Id: 434References(p. 435) present to stand trial at the seat of the Tribunal.³⁰⁵ In any case the chambers expected that proof of a serious prejudice to a specific right of an accused, mostly the right to be tried without undue delay, could be demonstrated.³⁰⁶

The ICC judges will most certainly rely on the Tribunals’ jurisprudence, and rightly so. In particular if one takes into account that the witnesses and victims are spared the necessity of testifying several times if trials are conducted jointly, there must be strong evidence that the rights of the accused are seriously hampered if no separation of the trials is ordered. This was also the rationale of Rule 136 RPE ICC attached to it by the drafters.³⁰⁷

V. Summary

The preparation for trial takes place after the charges have been confirmed and before the trial starts. This interim phase is directed by the Trial Chamber to which the case has been assigned. It is mostly concerned with putting together the trial calendar and the designing of the presentation of evidence at trial. Whereas the Prosecutor and the Pre-Trial Chamber, in confirming the charges, have carved out the theme of the trial, the parties need to agree with the Trial Chamber on how to proceed. Conferring in Status Conferences largely accomplishes this.

The dominant role of the Trial Chamber in managing the proceedings should be respected and advanced. Having obtained full knowledge of the case and the proceedings thus far through the ‘record’,³⁰⁸ the Trial Chamber can evaluate the weaknesses and strengths of the Prosecution case by itself and plan accordingly.

The possible strength of the Trial Chamber is at the same time the greatest loophole in the ICCSt.³⁰⁹ The Rome Statute gives to the Trial Chamber the authority to dominate the trial, direct the parties, and conduct its own investigation. However, the Rome Statute does not at the same time attribute full responsibility for the ‘quest for truth’ to the trial judges. The text of the Statute leaves it to the discretion of the Chamber to decide how much it actually wants to be involved in the search for the truth as an active player, or whether it prefers to stand back and watch the parties perform.³¹⁰Page Id: 435References(p. 436)

Consequently, there is a responsibility gap. The failure of the Rome Statute on this point might prove detrimental to the rights of the accused, as s/he cannot rely on the Trial Chamber to ask the right questions in his or her favour. However, his or her fate might depend thereon, in particular if the defendant is lacking resources for investigating himself.

This responsibility gap must be filled either by obliging the Trial Chamber to decide in advance which way it wants to try the case, which would probably lead to different strategies being adopted by different chambers in different cases, or—preferably—by placing the responsibility for searching for the truth squarely on the Trial Chamber. The overall development of international criminal procedure points in the latter direction.³¹¹ Most judges would probably see themselves as being part of the quest for the truth. However, the crucial point is that the judges are not only part of this quest, but its driving force and the body that will be held responsible in case of failure. The ‘inquisitorial element’, which has been identified as one of the relevant factors of the role of the judge, should be attributed to the ICC judge and thereby close the responsibility gap described.³¹²

C. The Structure of the Trial

Before looking at the trial structure of the ICC in detail we have to address a couple of preliminary issues. These are the questions of whether the trial consists of one or of two ‘acts’ (below I.1), and whether, and to what extent, the trial incorporates the entering of a ‘plea’ of guilty or not guilty on the side of the accused (below I.2).

I. Preliminary issues that may influence structure

1. The two-act system

The structure of the trial is not a straightforward issue. The two main systems followed in most of the world, Anglo-American and Continental European, follow different ideas of how to structure a criminal trial. On the Continent, there is only one act: conviction and sentencing are combined, in the sense that from the beginning of the trial the possible sanction is at issue. In the Anglo-American tradition there are two separate stages; in the first half, the case is presented and discussed with the sole intention of proving the guilt of the accused. Only in the second part, after the conviction, are the circumstances that are relevant to the extent of the penalty presented and disputed.

The original reason for this separation was the fact that the question of guilt had to be considered by a jury, while determination of the punishment could easily be left (p. 437) to the judge. The phenomenon of the jury was discussed earlier and it was shown then that a jury is unnecessary from a human rights perspective and that there is no ‘right to a jury’. So we are faced with the interesting question of whether or not separation of guilt and punishment is still appropriate, or whether it is outdated. It is argued here that separation still makes sense and indeed supports protection of, and fairness towards the accused.

If there is a separate second stage for sentencing, the accused’s personal details, his or her background, occupation, and income, his or her position as regards previous convictions, are of no interest in the first part of the procedure. There, commission of the criminal offence is the only issue that is under scrutiny. In a single-stage trial, on the other hand, all of the above matters will be mentioned before guilt is established. This of course has the advantage that the judge gets the complete picture relying not only on the circumstances of the act as such but comprising also the personality of the accused, his or her character, previous convictions, and dangerousness.

The pros and cons of both approaches are easily enumerated. Whereas the Continental system allegedly does more justice to the individual guilt of the perpetrator by taking his or her personality into account, it leads at the same time to serious concerns regarding the presumption of innocence and the protection of the privacy of the accused.³¹³ A separation of the questions of the guilt of the offender and of the amount of punishment to be imposed thus seems to be preferable from a human rights perspective.³¹⁴

It does not surprise that the ad hoc Tribunals, which are modelled according to the Anglo-American system, originally followed the two-act structure. However, this split system turned out to be a rather time-consuming enterprise. For example, Dusko Tadic was convicted by Trial Chamber II on 7 May 1997³¹⁵ and the sentencing judgment was handed down two months later on 14 July 1997.³¹⁶ As the conviction was modified on appeal,³¹⁷ the trial chamber had to revisit its sentencing decision and issued a new judgment on 11 November 1999.³¹⁸ The appeal against this sentencing judgment was finally served on 26 January 2000.³¹⁹ Thus in order Page Id: 437References(p. 438) to speed up the proceedings, Rule 87 C RPE ICTY was amended in that regard. Since 10 July 1998 the Trial Chamber will issue one single judgment containing both the verdict as to the guilt of the offender and, in the case that this is positive, determine the penalty to be imposed with regard to the convictions in respect of the charges.

The ICC in contrast adheres to the two-act system and separates the question as to the guilt of the offender from the question of the sentence to be imposed. This is laid down on the one hand in Art. 65 ICCSt, and in the provisions pertaining to the sentencing on the other, which are Arts 74 and 76 ICCSt.

2. The guilty plea

Another issue, which has consequences on the structure of the trial, is the question of how much influence is attributed to the ‘confession’ of the accused. One special phenomenon of the Anglo-American system in this regard is the ‘guilty plea’. The accused has the option of pleading guilty before the hearing starts. If s/he does so, the first stage of the trial becomes superfluous. No more proof is needed to establish the guilt of the defendant. With the guilty plea, the defendant seems to be automatically waiving his or her rights under the human rights treaties: as far as the establishing of the facts is concerned, no more defence is needed (Art. 14 (3) (b) and (d) ICCPR), no more witnesses need to be examined (Art. 14 (3) (e) ICCPR), and the right to appeal is severely limited (Art. 14 (5) ICCPR).³²⁰ The enormous practicality and speedy termination of the proceedings have been put forward as having advantages here.³²¹ The possibility of pleading guilty enables the prosecuting agencies to focus on important issues and liberates them from the tiring work of detailed judicial scrutiny of the charges.

The plea is necessarily foreign to the Continental system of criminal procedure because it cannot be reconciled with its maxim of truth finding. In Continental proceedings a confession does not have the result of terminating the procedure; it merely constitutes one strand of evidence among others.

The ICTY once more follows the Anglo-American tradition and foresees two trial stages, despite the fact that no jury is involved. On his or her initial appearance before the Trial Chamber, the accused must enter a plea of guilty or not guilty (Rule 62 RPE ICTY). In the case of a guilty plea, the trial proceeds immediately to its second stage and the hearing only concerns the appropriate sentence (Rule 100 RPE ICTY³²²). A plea of guilty concerning allegations of crimes against humanity (p. 439) (Art. 5 ICTYSt) was entered by Erdemovic. The Trial Chamber I was satisfied that the plea was made voluntarily, in full cognizance of the nature of the charge and its consequences, and was unequivocal, and sentenced the defendant to ten years’ imprisonment.³²³

However, Erdemovic appealed against this judgment and in particular against his guilty plea. The Appeals Chamber delivered its decision on 7 October 1997, overruling the Trial Chamber with regard to the plea on the following grounds: Erdemovic pleaded guilty to the counts of crimes against humanity (Art. 5 ICTYSt) in the belief that this was the lesser charge compared to the alternative indictment of a violation of the laws or customs of war (Art. 3 ICTYSt). This proved to be erroneous. The Trial Chamber made a considerable effort to define crimes against humanity as the gravest and most serious crime imaginable, deserving the severest punishment. Had Erdemovic been aware of the situation, he would most probably have entered a different plea. For the Appeals Chamber, the guilty plea was therefore not an informed one and the defendant was given the opportunity to plea again with full knowledge of both the nature of the charges against him and the consequences of his plea before another Trial Chamber.³²⁴ For these reasons, Erdemovic then pleaded guilty to the charge of a violation of the laws or customs of war on 14 January 1998, whereupon the prosecutor withdrew the alternative count of a crime against humanity. The Trial Chamber gave a second sentencing judgment on 5 March 1998, reducing the sentence to five years, having found Erdemovic’s second plea voluntary, informed, and unequivocal.³²⁵

In order to avoid similar inconveniences in the future, the Fourteenth Plenary Session adopted Rule 62bis, where it laid down the conditions for a valid guilty plea.³²⁶

The discussions concerning the Rome Statute where thus influenced by two sets of arguments: (1) a situation like the one in which Erdemovic found himself is to be avoided under all circumstances, and (2) from a truth-finding perspective the guilty plea can prove counterproductive if the decision whether or not to stage a trial is left entirely up to the accused. The Rome Statute thus, even if it did not abolish the ‘plea’ proceedings entirely, departed substantially from the Anglo-American structure. According to Art. 65 ICCSt, the accused does not enter a guilty plea but rather admits this guilt. The term ‘guilty plea’ was deliberately avoided.³²⁷ The Trial Chamber must in this case still evaluate whether Page Id: 439References(p. 440) this voluntary admission is supported by the facts of the case. This is strongly reminiscent of the Continental way dealing with a confession.³²⁸ However, the procedure which is to be followed is rather complicated and will be looked at below in greater details.

3. Plea bargaining

In a system where the discretionary powers of the prosecutor are wide, in which two parties line up in order to present their respective hypotheses, and in which a guilty plea will not be questioned as to its truthfulness, it is natural that these parties can craft a deal in advance and agree upon what to present to the judges and what to leave aside.³²⁹ Thus a murder charge can be traded for a guilty plea to a charge of manslaughter and—possibly—a genocide charge for a charge of war crimes. This is what is called charge bargaining. The prosecution might also offer a specific sentence in return for a guilty plea, which would be called sentence bargaining.³³⁰ For a Continental lawyer such an approach is foreign for principled reasons. As the main purpose of the criminal trial is to discover the truth, a deal concerning this truth is unthinkable. Yet for many years plea bargaining has found strong support amongst judges, prosecutors, and defence lawyers even on the Continent. Its persuasiveness comes from its power to speed up the proceeding and reduce the workload of all participants considerably.

The practice of plea bargaining enjoys wide recognition at the ICTY and has been used, both in the form of charge and of sentence bargaining,³³¹ in particular in order to speed up the trials and fulfil the necessities of the completion strategy.³³² This was not always the case.³³³ Only on 13 December 2001 was Rule 62ter RPE ICTY adopted which would allow for plea bargaining.³³⁴ Since then about one-third of all Page Id: 440References(p. 441) convictions were secured by plea bargaining,³³⁵ a ‘triumph of pragmatism’ indeed.³³⁶ Whereas the ICTR has evidently the same Rules as the ICTY, guilty pleas have terminated the trial in only about sixteen out of every hundred cases.³³⁷

Yet plea bargaining has caused some discussion at the ICTY:³³⁸ It is an issue as to whether a guilty plea, which is part of a plea bargaining, can be seen as a mitigating factor in the sentencing decision.³³⁹ Its nature as a negotiated ‘confession’ raises serious doubts as to whether it can add to the reconciliation process in the societies concerned.³⁴⁰ It is also doubtful whether the truth finding is enhanced by plea bargaining notwithstanding the fact that the ICTY has frequently held exactly this.³⁴¹ At the very least, neither the Chambers nor the public can assert whether what was agreed upon in the plea agreement coincides with the factual truth.³⁴²

It is generally questionable whether plea bargaining is an adequate method of administering justice in international criminal trials.³⁴³ Considering that plea agreements are seldom used with serious crimes in national jurisdictions it seems not acceptable to act otherwise confronted with the gravest offences which shock the conscience of mankind.³⁴⁴ The argument in favour of plea bargaining for reason of efficiency of the proceedings is one of convenience but not of substance.³⁴⁵ A different answer to the problem of administering Page Id: 441References(p. 442) properly would be to fund the Court in an adequate way so that it can fulfil its mandate.³⁴⁶

At the ICC luckily a rather cautious approach prevailed regarding plea bargaining. In Art. 65 (5) ICCSt this fact found its expression in that any agreement between the Prosecutor and the defence concerning either the modification of charges, the admission of guilt, or the expected penalty, will not be binding on the Court. However, negotiations between the Prosecutor and the defence are thus not ruled out.³⁴⁷ Whether and to what extent an agreement reached between these two parties will influence the proceedings before the Chambers will depend heavily upon the willingness of the judges to intervene.³⁴⁸ As much as the judges can influence the confirmation of the charges at the pre-trial stage pursuant to Art. 61 (7) ICCSt, and as much as the judges can require additional evidence to be produced at the trial stage pursuant to Art. 64 (6) ICCSt, they are not forced to do so. As has been discussed before, the judges are not as such responsible for the truth finding.³⁴⁹ Judges could just as well satisfy themselves with the charges as bargained between prosecution and defence and desist from inquiring about the whole truth of the event.³⁵⁰

Budgetary limits could raise the attraction of plea agreements as a means to terminate cases quickly.³⁵¹ Because of the procedural practice at the ad hoc Tribunals, it is likely that plea bargaining will play some role at the ICC also.³⁵² Despite of all the criticism raised against plea bargaining both at the national and the international level, all the participants in the prosecution process always yielded to temptation based on the practicality of a ‘deal’. It would be utterly unrealistic to assume that things would turn out differently at the ICC. One additional class of player however could make a difference: the victims. Because of their involvement into the trial process, it could become more difficult for the ‘parties’ to bargain behind closed curtains.³⁵³ It might then not be enough to point to the effect of the guilty plea that (p. 443) ‘the victims of [the] crimes were spared the emotional burden of having to testify at trial’.³⁵⁴ Victims might insist on the searching for the entire truth.

II. The structure of the trial at the ICC

The actual structure of the trial is not the core issue of the Rome Statute. It is mainly Art. 64 (8) ICCSt which gives the basic parameters for the trial. Accordingly, the trial begins with the reading out of the confirmed charges, Art. 64 (8) (a) ICCSt.³⁵⁵ Upon the presentation of the charges the accused is to be given the opportunity to make an admission of guilt or plead not guilty. The structure of the rest of the trial is mainly for the presiding judge to decide, for it is he or she who has to ensure that the proceeding is conducted in a fair and impartial manner, Art. 64 (8) (b) ICCSt.

It is interesting to note that according to Rule 140 (1) RPE ICC a rather non-hierarchical alternative is foreseen. In the event that the Presiding Judge does not give directions, the parties; that is, the Prosecutor and the defence, shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If this does not work, the authority will in the end be referred back to the Presiding Judge. The intention of the RPE ICC is rather unclear in this regard. All options are permitted.³⁵⁶

The Rome Statute follows a two-act system, that is, the guilt of the accused is dealt with in a proceeding, which is separate from that concerning the sentencing. The first act of the trial is again twofold. The first stage comprises the question of admission of guilt and the consequences thereof. The second stage consists of the presentation of evidence, if a full-blown trial is warranted. We will look at these stages as three different phases: phase 1: the guilty plea, phase 2: the presentation of evidence, and phase 3: the sentencing.

1. Phase 1: Guilty plea

The trial starts with the reading of the charges as confirmed by the Pre-Trial Chamber. This is more or less a formal act, as the accused knows the allegations, which are being raised against him/her, from the status conferences held in preparation of the trial. The accused should then state whether s/he pleads not guilty or whether s/he wants to make an admission of guilt (not of facts) according to Art. 65 ICCSt.

Even if Art. 64 (8) and Art. 65 ICCSt relate the admission to the beginning of the trial stage, there is no reason why the accused should not have the right to admit Page Id: 443References(p. 444) his/her guilt after the trial has already entered its second stage, the presentation of the evidence. The Trial Chamber will in that case speed up prosecution by following Art. 65 ICCSt.³⁵⁷ It becomes more difficult if the accused wants to admit his/her guilt before that. There are two problems connected to this question. One is that the Pre-Trial Chamber, confirming the charges according to Art. 61 ICCSt, has no authority to opt for an abbreviated procedure according to Art. 65 ICCSt as it does not possess the power to convict.³⁵⁸ The second issue is the fact that the ‘charges’ containing the allegations are only available after the confirmation decision. Before the charges are finalized, there is no formal allegation to which the accused could admit his guilt. Therefore, it is impossible to implement the Art. 65 ICCSt proceeding before the beginning of the trial. In the event that the person concerned is conscience-stricken, s/he can of course cooperate with the OTP and thereby speed up the entire proceeding during the investigation stage and the confirmation process. A formal admission of guilt however is only allowed after the beginning of the trial.³⁵⁹

In case of an admission, the Trial Chamber will scrutinize the validity of this admission and test whether the admission is supported by the facts of the case. There are four options at the discretion of the Chamber, which follow:³⁶⁰

(1) Convict the accused on that basis (Art. 65 (2) ICCSt);
(2) Reject the admission and proceed with the (ordinary) trial (Art. 65 (3) ICCSt);
(3) Despite the general acceptance of the confession order the presentation of additional evidence (Art. 65 (4) (a) ICCSt); or
(4) Despite a valid confession reject the admission and order an ordinary trial (Art. 65 (4) (b) ICCSt).

We will look at the validity test and the support by facts as well as the option to proceed with the trial despite a valid admission in greater detail.

a. Validity of the admission of guilt

The Rome Statute ties in with the ICTY practice concerning the guilty plea. Pursuant to Art. 65 (1) ICCSt, preconditions for the validity of the admission of guilt are as follows:

(a) the accused must understand the nature and consequence of the admission of guilt, and
(b) the admission must be voluntary and be made after sufficient consultation with defence counsel.

(p. 445)

(a) The admission of guilt pertains to the charges and not the actual facts. The admission of guilt is not a confession in the Continental European sense. Thus the Chamber must satisfy itself that the accused understands the ‘nature’, ie the elements of the crime, the legal requirements, the gravity of the ‘charges’, and the possible penalties. Furthermore, the accused must be aware of the ‘consequences’ of his/her admission, that is, the waiver of his procedural rights.

(b) The admission of guilt is voluntary, if it is free from any form of threat, coercion, duress, or any form of improper promise.³⁶¹ The requirement of consultation with counsel should act as a guarantee for the voluntariness in this sense. Despite its systematic place within Art. 65 (1) ICCSt, the requirement of consultation with counsel should also help to safeguard the knowledge of the accused concerning the nature and consequence of the admission of guilt. The question of how much consultation is ‘sufficient’ is to be answered on a case-by-case basis. It depends on the complexity of the charges, the capacities of the accused and the amount of influence which has already taken place from prosecuting agencies. This requirement is evidently connected to the right of a suspect or accused according to Art. 55 (1) (a) and Art. 67 (1) (g) ICCSt not to incriminate him/herself.³⁶²

The requirement of counsel consultation has another element to it: defence counsel is thereby made responsible for any failures in this regard. Consequently, allegations of ineffective assistance of counsel could be raised.³⁶³

b. Supporting facts

Even if the admission of guilt was informed and voluntary and took place after sufficient consultation with counsel, it is only ‘valid’ in the sense of Art. 65 ICCSt, if it is supported by facts.³⁶⁴ Art. 65 (1) (c) (i)-(iii) ICCSt differentiates between three points of reference determining the facts that are relevant here.

First, the admission of guilt has to conform to the facts ‘contained in the charges’. As we have seen, a ‘charge’ encompasses a factual side, specifying the natural act, time, and place as well as the victim.³⁶⁵ Secondly, the statement of the accused needs to comply with the facts which are contained in the material presented by the Prosecutor, and which has been accepted by the accused. The material presented in support of the charges in the DCC is that which is meant by Art. 61 (3) (b) ICCSt.³⁶⁶ It is however necessary that the accused accepts this material. Finally, (p. 446) the Chamber needs to find congruence between the admission of guilt and any other evidence presented by the Prosecutor or the accused. In that case the facts need not have been approved by the accused.³⁶⁷

In the event that the Chamber is content with the admission, it may convict the accused on this basis according to Art. 65 (2) ICCSt and enter into the sentencing procedure according to Art. 76 ICCSt. Art. 66 (3) ICCSt should be applicable here, which means that the Chamber must be convinced of the guilt of the accused ‘beyond a reasonable doubt’.

If the Chamber is not satisfied with the material and evidence before it, it proceeds according to Art. 65 (3) ICCSt. The admission of guilt is in that case to be considered as not having been made; that is, the case is to be put into the status quo ante. It is for the Chamber to decide whether to remit the case to another Trial Chamber.³⁶⁸ It would do so if the proceedings on the admission of guilt have damaged the impartiality of the judges.

c. Further evidence despite valid admission of guilt

Should the Trial Chamber be of the opinion that the admission of guilt is valid and is also supported by the facts as required by Art. 65 (1) ICCSt, it may still proceed as foreseen in Art. 65 (4) ICCSt and request more evidence from the Prosecutor or order the application of ordinary trial procedure, if the interests of justice so require. Before deciding on this issue the Chamber hears the view of the Prosecutor and of the defence according to Rule 139 (1) RPE ICC.

This is a rather problematic provision, which to a certain extent punctures the idea of the abbreviated procedure in case of an admission of guilt. I cannot see why this provision establishes ‘an important link between the civil law and the common law approach on guilty pleas’³⁶⁹ for two reasons. First, the provision of Art. 65 (4) ICCSt pertains only to a situation in which the Trial Chamber is satisfied with the admission of guilt as being both valid and supported by the facts. Secondly, the further proceeding is not necessary for the determination of the guilt of the accused, but only for reasons of the interests of justice. Therefore, there is a real danger that the accused is made an object of the proceeding, having to suffer a prolonged procedure for some higher goal; that is, ‘interests of justice’. Neither common law nor civil law would endorse such an outcome for the accused.

Therefore, it seems hard to justify these ‘extra’ proceedings according to Art. 65 (4) ICCSt. It can only be achieved by interpreting the ‘interests of justice’ as the (p. 447) ‘interests of the victims’. Indeed the victims’ interests are mentioned explicitly in this provision.³⁷⁰ Assuming that the victims have an interest in establishing an all-embracing record and have an interest in having their voices heard in a public forum,³⁷¹ one could balance the interest of the accused to have a speedy trial with these interests of the victims and conclude that in special scenarios, additional evidence underpinning the admission of guilt, would be welcomed.³⁷² I would suggest the ICC embark down this avenue according to Art. 65 (4) (a) ICCSt only in exceptional circumstances and avoid an ‘unnecessarily lengthy hearing’ under Art. 65 ICCSt.

d. A full trial and rejection of admission

Reasons for an ordinary trial are even harder to retrieve in cases in which the admission of guilt is valid and supported by the facts. But Art. 65 (4) (b) ICCSt allows this, if a more complete presentation of the facts is required in the interests of justice, in particular the interests of the victims. The trial is in such a case not necessary for the determination of the guilt of the accused. The accused has admitted his/her guilt, and his/her plea is credible and conforms to the facts. If in such a case a full trial is ordered, this trial is obviously conducted for other reasons than to convict the accused according to his/her guilt. At the end of the day, the trial, which will be staged according to Art. 65 (4) (b) ICCSt, equals a judge-led truth commission. In any case, if the Chamber decides to have an ordinary trial despite a valid admission of guilt is must remit the case to another Trial Chamber, otherwise the trial would become a mockery, as the judges are clearly already convinced of the guilt of the accused.

Of course this reading of Art 65 ICCSt is based on the basic assumption that any case in which the judges doubt the truthfulness of the admission of guilt comes within the remit of Art. 65 (3) ICCSt. The only case relevant for Art. 65 (4) (b) ICCSt would be a separation of trial against several accused, which will be discussed below. The question of whether the decision of the Trial Chamber to reject the admission of guilt is reviewable on appeal will be discussed later.³⁷³

e. Partial admission

A situation might arise in which the accused admits his/her guilt, but only to some of the ‘charges’, and plead not guilty to the remaining charges. There could be two answers to this setting: either the Chamber accepts the partial charge and convicts for these immediately while proceeding (p. 448) with an ordinary trial concerning the remaining charges, or the Chamber proceeds with the ordinary trial and consider the admission of guilt together with the other evidence presented in the course of the trial.³⁷⁴ I would suggest that it is preferable to follow the latter course, mainly for two reasons: (1) to have split trials against one accused should be avoided, as it would complicate the proceedings unnecessarily, and (2) the scenario is one of the cases of the application of Art. 65 (4) (b) ICCSt, where the interests of justice require a full trial. The Chamber should question the reasons for the accused to admit his/her guilt to some and plead not guilty to other charges. For this matter an ordinary trial is necessary.

In a scenario where several accused are tried jointly and one accused admits his or her guilt, the Chamber should separate his or her trial according to Rule 136 (1) RPE ICC and proceed in the abbreviated trial form of Art. 65 (2) ICCSt.³⁷⁵

2. Phase 2: Presentation of evidence

After the Trial Chamber has read out the charges as confirmed by the Pre-Trial Chamber, and has satisfied itself that the accused understands these charges properly, and after the accused has been given the opportunity to admit his/her guilt according to Art. 65 ICCSt or plead not guilty, the trial enters into the next stage: the presentation of evidence.

a. Structure of the trial

The order and the manner in which the evidence is being presented depend on the individual Trial Chamber (see Rule 140 (1) RPE ICC).³⁷⁶ At the ad hoc Tribunals the rules laying down the structure of the trial were more straightforward. Analogous to these rules, the structure of the trial at the ICC could or maybe even should be as follows:

(1) Opening Phase³⁷⁷
- • Opening Statement of Prosecutor
- • Opening Statement of Defence
(2) Presentation of Evidence³⁷⁸
(3) Closing Phase (Rule 141 RPE ICC)³⁷⁹
- • Closing Statement by the Prosecutor
- • Closing Statement by the Defence

The opening phase and the presentation of evidence could be conducted in such a way that the defence makes its opening statement after the Prosecutor has finished his or her case; that is, given his opening address and presented his or her evidence. In particular, English law has developed this method³⁸⁰ and this is the way in which the ad hoc Tribunals operate (see Rule 98 RPE SCSL, Rule 98bis RPE ICTY/ICTR).³⁸¹ It has at least one advantage. Should the prosecutor fail to submit a conclusive string of evidence to buttress his or her hypothesis and establish the guilt of the accused beyond a reasonable doubt, the defence could enter a motion of ‘no case to answer’.³⁸² Should the Trial Chamber decide in favour of the defence, the trial would be terminated without the defence having to present evidence.

The test which is being applied is elaborated on in the Celebici Appeal³⁸³ and confirmed in the Jelisic Appeal:³⁸⁴ ‘[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question’.

There are thus three criteria, which are relevant at that point:

(1) the standard of proof is the same as for the conviction of the accused. Therefore, the prosecutor’s evidence, if accepted, must prove the guilt of the accused beyond reasonable doubt. This seems logical, as the defence case which would follow will not harden the prosecutor’s case; indeed, quite the contrary will be the case.

(2) The test is a hypothetical one. The prosecution evidence is not tested according to admissibility and reliability. This again is plausible, as the analysis of the evidence in this regard could not enhance the prosecution case.Page Id: 449References(p. 450)

(3) The judges must not predict whether they would convict. They must guess whether any chamber could convict. To put it into a negative test: the judges must be satisfied that under no circumstances would a reasonable tribunal convict on the particular charge in question.

This test is to be applied on the different charges individually. As a result, the accused might be acquitted for some charges whereas the trial would continue on the remaining charges.³⁸⁵

There is no reason why at the ICC a Trial Chamber should not accept a similar motion of ‘no case to answer’ even if it is not foreseen in the relevant provisions explicitly.³⁸⁶ Even if one could say that the Pre-Trial Chamber fulfils a similar function, in that it evaluates the evidence presented by the prosecutor in the confirmation hearing, a situation could arise at the trial in which after the main prosecution case, the evidence presented by the prosecution faltered in cross-examination and the guilt of the accused seems wholly unlikely. Even if the Pre-Trial Chamber found ‘substantial grounds to believe’ that the accused has indeed offended as charged, the standard to be applied at the trial stage is reasonably higher and could thus not be met in the eyes of the trial chamber. Acquitting mid-trial would then raise the efficiency of the proceeding in its entirety and spare the accused unnecessary hardship and costs.

Likewise the accused could at the end of the prosecution case enter a guilty plea (as at the ad hoc Tribunals) or admit his/her guilt according to Art. 65 ICCSt. In that case there would be no defence case-in-chief. The Chamber would proceed immediately to the determination of the sentence.³⁸⁷

b. Form of presentation of evidence

The form of presenting the evidence is anything but optional and interchangeable. Indeed we are confronted here with one of the crucial differences between the Continental European and Anglo-American trial system.

(1) Witness testimony in the inquisitorial system

If we take the German system of criminal procedure as an example, we note first of all that the presiding judge leads the questioning of the witness (see §§ 238 (1) and 240 (1) German Code of Criminal Procedure). Pursuant to § 69 German Code of Criminal Procedure the (p. 451) examination which follows is separated in two stages: (1) the report, and (2) the questioning.³⁸⁸

The witness must be given a chance to give his/her testimony free of interruptions by questions.³⁸⁹ Thereby, the judges can observe what the witness recalls and what s/he states upon ‘coaching’ by the court.³⁹⁰

The presiding judge will admit questions by the prosecutor, the accused, and the defence counsel, thus conducting the questioning pursuant to § 240 German Code of Criminal Procedure. Civil party is also allowed to pose questions.³⁹¹ These questions serve the truth-finding process in that they help test the witness, detecting contradictions, and ensure his or her statement is precise.³⁹² The right to confrontation as contained in Art. 6 (3) (d) ECHR is thereby fulfilled.³⁹³

In § 239 German Code of Criminal Procedure, formal cross-examination is also foreseen. As a matter of fact, however, this norm is almost never invoked.³⁹⁴ This is largely due to the fact that cross-examination is foreign to German criminal procedure.³⁹⁵ Indeed, neither the prosecutor nor the defence would be interested in nor be prepared to take on the full presentation of evidence.³⁹⁶ Yet one has to state that in most German courtrooms the questioning of a witness is conducted by way of informal cross-examination in that judges, prosecutor, defence, and civil party are on equal footing in questioning a witness and that the provision of § 240 (2) German Code of Criminal Procedure is applied extensively.³⁹⁷

One important maxim of German Criminal Procedure is the fact that the accused is not a witness.³⁹⁸ This is understood to be a corollary of the right of the accused to be silent.³⁹⁹ As s/he cannot be forced to cooperate with the prosecution and even has the right to lie to the court, no pressure is to be put onto him or her at all.⁴⁰⁰ As a witness s/he would be obliged to tell the truth and be put under oath. The German Criminal Procedural Code thus does not allow the accused to testify as a witness in order to prevent unnecessary stress and pressure for him/her.Page Id: 451References(p. 452)

(2) Cross-examination in the adversarial system

In the adversarial system, where the presentation of the evidence is to be conducted by the parties, namely the prosecutor and the defence, cross-examination is the backbone of witness testimony. Wigmore called the cross-examination the greatest engine ever invented for the discovery of the truth.⁴⁰¹ The US Supreme Court gives its constitutional blessing stating that it follows from the Sixth Amendment that the Government may not rely on witnesses without submitting them to cross-examination.⁴⁰²

Yet ‘cross-examination’ is not to be confused with the human right of the accused to ‘examine’ the witnesses against him/her as contained in Art. 6 (3) (d) ECHR and Art. 14 (3) (d) ICCPR. It is not to be mistaken as a simple right of the defence to put questions to the witness. The term ‘cross-examination’ stands for a special technique of presenting witnesses as evidence at trial.

The presentation of the witness consists of different stages:

(1) Direct examination or examination-in-chief;
(2) Cross-examination;
(3) Redirect examination or re-examination.

The idea of this mode of presentation is to edit the evidence for the jury and dissect the case into easily digestible portions. In direct examination the prosecutor will lead the witness to support his/her hypothesis as to the guilt of the accused. In cross-examination the opponent counsel will try to cast enough doubt on either the person of the witness or on his/her statement such as to render the witness untrustworthy or the evidence unreliable. The primary issue is not to establish the truth but to falsify the prosecution case. On re-examination the primary examiner will try to minimize the damage done to his/her case on cross-examination.

The accused cannot be compelled to testify; however, s/he is a perfectly competent witness to testify, if s/he so wishes. If s/he enters the witness-box,⁴⁰³ s/he is in general to be treated like any other witness with two important exceptions:⁴⁰⁴ (a) s/he cannot claim the privilege against self-incrimination concerning the misconduct s/he is being prosecuted for, and (b) evidence of bad character is generally admitted. These two exceptions make the testimony of the accused fairly unattractive or even dangerous for the outcome of the trial, as the prosecutor can potentially destroy Page Id: 452References(p. 453) the positive image painted by direct examination through cross-examining the accused.

(3) Witness examination in international proceedings

In Nuremberg the presentation of evidence followed the Anglo-American structure and the presentation of evidence rested in the responsibility of the parties. Thus, cross-examination by the adversary party was an important procedural tool pursuant to Arts 16 (e) and 24 (e) IMTSt.

One of the most impressive and memorable cross-examinations in Nuremberg was that of Rudolf Höss, the former commander at Auschwitz concentration camp.⁴⁰⁵ He was called into the witness box by counsel for Kaltenbrunner, Dr Kurt Kauffmann, in order to deculpate his superior, the accused Kaltenbrunner. He should give evidence that only very few people indeed knew of the gas chambers and the systematic extermination, and that the death squads consisted only of some sixty men.⁴⁰⁶ On cross-examination by Col. Amen the witness confirmed what he had stated in an affidavit gained by Whitney Harris before, that about three million Jews were exterminated at Auschwitz concentration camp.⁴⁰⁷ For the first time the Holocaust in all its brutality and monstrosity was made known to the public. This indeed took place by way of cross-examining the witness.⁴⁰⁸

Many of the accused at Nuremberg appeared as witnesses before the court. They did not have to. According to the IMTSt, the defendants could also make an unsworn statement to the Tribunal without subjecting himself to cross-examination. The drafter of the IMTSt made this concession to the Continental system.⁴⁰⁹ If however they chose to appear as witnesses, they were consequently cross-examined by prosecution; seldom could the positive image the counsel was attempting to draw in direct examination be upheld under scrutiny of prosecution counsel. Only Albert Speer managed to bluff the court and make the judges believe he did not know about the ‘final solution’.⁴¹⁰ The cross-examination of Hermann Göring, who was the most senior person in the dock, by the US Chief Prosecutor Justice Robert H Jackson, was at the time and later often dramatized and was treated like the ultimate showdown between ‘good’ and ‘evil’. Indeed Göring took the liberty of not only answering Jackson’s questions but elaborating excessively in order to explain (p. 454) the situation of the German people from his perspective. Despite Jackson’s objections the Court let Göring and his political statements pass,⁴¹¹ which is very unusual in cross-examination. When Jackson, who admittedly was not an experienced cross-examiner, informed the Court that the cross-examination is not the place for political statements,⁴¹² he was right. During examination-in-chief the defendant has the chance to state what s/he wants to state. The Court however followed the argument of defence counsel Strahmer, who claimed that the accused must be given the time to explain the answer properly. Jackson adjusted his strategy and the next day Göring saw himself confronted with one document after the next and he had to admit that he had signed them.⁴¹³ The gloire of the day before turned to dust.⁴¹⁴

The IMT, despite its clear tendency towards the Anglo-American trial structure, consisted of all four Allied Powers, two of whom were used to Continental trials. In addition, the German defence counsels were not used to cross-examination. It should therefore not surprise that at some points the IMT practice deviated from the pure Anglo-American procedural system. We can also conclude from the Nuremberg Trial that judges who are themselves obliged to decide the case, tend to be more active and take the liberty to intervene in the presentation of evidence, than those judges who merely control the presentation of the evidence for the jury.⁴¹⁵

The first impression, which we gained by looking at several instances at the IMT, is confirmed by the practice at the ad hoc Tribunals. Originally, the Statutes were drafted according to an Anglo-American blueprint. Thus, the respective parties present evidence and the witness is submitted to cross-examination. Rule 85 (B) RPE ICTY speaks of ‘examination-in-chief, cross-examination, and re-examination’, which must be allowed in each case. Rule 90 (H) RPE ICTY regulates cross-examination in that it limits its scope to the subject matter of the examination-in-chief, matters affecting the credibility of the witness and other matters relevant for the case of the cross-examining party. A vivid discussion has arisen whether the cross-examiner may confront the witness with prior inconsistent statements.⁴¹⁶ Despite the vagueness of the RPE in this matter, such questioning must be allowed in order to test the reliability of the witness, which is after all the Page Id: 454References(p. 455) aim of cross-examination.⁴¹⁷ However, if the use of prior witness statements impede the fairness of the trial, their use must not be permitted.⁴¹⁸

At any time a judge may pose a question to the witness, Rule 85 (B) RPE ICTY, so as has been said, the Trial Chamber largely controls cross-examination.⁴¹⁹ In practice, a written summary of the testimony is handed over to the Chamber before the witness is heard viva voce.⁴²⁰ This shows how eager judges are to gain control over cross-examination.⁴²¹ It should not surprise that this development was fuelled by the former German Judge Schomburg.⁴²²

According to Rule 85 (C) RPE ICTY the accused may appear as witness. It is left to his or her discretion as to whether he or she wishes to do so and if so, when to testify. S/he cannot be compelled to testify at all.⁴²³

In general the Chambers accept the traditional aim of cross-examination, that is, extract further information and—most importantly—to cast doubt on the narrative of the story presented in direct examination.⁴²⁴ Yet the further development shows that the judges attribute to cross-examination the ability to find the truth. This, as has been said, is after all the overall aim of the taking of evidence.⁴²⁵ If this is the case, a judge must at any time be in a position to bring forward questions which s/he considers relevant for the quest for the truth. Indeed, s/he would be obliged to do so, otherwise s/he would knowingly base judgment on an incomplete factual basis.

At the ICC the normative situation is even more complex. As the ICCSt was drafted as a compromise and was intended to establish a unique international procedural Page Id: 455References(p. 456) order, a clear commitment to one or the other way of witness examination was avoided.

In Rule 140 (2) RPE ICC the Anglo-American style of witness testimony is being presented as an optional way. It reads as follows:

2. In all cases, subject to Article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows:

(a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness;

(b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters;

(c) The Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b);

(d) The defence shall have the right to be the last to examine a witness.

The way in which here words like ‘cross-examination’ or ‘direct examination’ are avoided has an almost comical touch to it. Yet it is clear, that (2) (a) refers to examination-in-chief, and (2) (b) to cross-examination. Why re-examination has been omitted is unclear. Following the development at the ICTY, (2) (c) allows for the judges to intervene but only before or after the questioning by the Prosecutor or defence counsel and not at the time of the questioning. Taken verbatim this would mean that a judge may not interrupt counsel while questioning a witness, and a judge may only question a witness once, before or after the parties’ examination. It is doubtful whether these restrictions were really intended as it would mean that the ICC Judge is much more limited in his/her inquisitorial competences than his/her ICTY colleagues. Under these circumstances it must be hoped that the ICC judges would disregard Rule 140 (2) RPE ICC and rather follow a more informal approach to the question of witnesses.

The ICCSt is more cautious towards the accused appearing as witness. According to Art. 67 (1) (h) ICCSt the accused has the right to make an unsworn oral or written statement in his or her defence. This could mean several things.⁴²⁶

(1) It could mean that his/her right to make an unsworn statement at the same time disallows the accused from testifying as a witness on his behalf (argumentum e contrario).
(2) One could also argue that the accused retains his/her right to enter the witness box, swear to the truth, submit to cross-examination, and run the risk of being prosecuted for perjured testimony by virtue of Art. 74 (2) ICCSt,⁴²⁷ yet if s/he chooses not to do so, s/he may submit an unsworn (p. 457) statement. The judges shall in that case accept this statement as evidence the truthfulness and weight of which they must evaluate by other means than cross-examination and oath.

Whereas opinion (1) would favour a Continental procedural order,⁴²⁸ opinion (2) is attributable to an Anglo-American approach, enlarging the narrow view that only sworn statements count as evidence at trial.

It is typical for the ICCSt to be caught between two stools. It is most likely that the drafters intended to comprise all possible options, which of course renders the system arbitrary to a certain extent. According to the functional-normative approach which is being followed in this book it would not matter so much that the accused has these two options: (1) access the witness box and submit to cross-examination, and (2) issue an unsworn statement. It would be necessary however to ensure that the accused will not suffer any disadvantage depending on the options s/he chooses to follow. Therefore, an unsworn statement must in general have the same evidentiary value as a sworn testimony. The difference however lies in the way in which the reliability and truthfulness is being tested. In the case of a testimony under oath, this test is being conducted by way of cross-examination. In the case of an unsworn statement the evaluation must be effected by other means, like circumstantial evidence and indirect evidence. Either way, the judges must identify their reasons why they did or did not believe the defence plea by the accused.

(4) Witness proofing

A question which needs to be addressed when talking about witnesses in a criminal trial is that of whether or not and to what extent may a witness be prepared for his/her testimony. There are several ways of preparation imaginable. First, a witness who might have travelled a long way and is unfamiliar with the surroundings, might be shown around the courtroom in order to get him/her accustomed to the room, the technical equipment, and the seating arrangements. Secondly, a witness might be briefed as regards the procedural idiosyncrasies; that is, who poses the questions, what are the rights of the witness, and what is the meaning of the ‘oath’. Thirdly, the party for whom the witness appears speaks with the victim prior to his/her appearance in court and prepares him or her for his or her testimony. This might go as far as a proper ‘rehearsal’ of the examination-in-chief combined with the attempt to anticipate the issues the opponent party might raise at cross-examination.

The first two stages described above are widely uncontested. The need to familiarize the witness with the surroundings and the procedure is necessary, as the witness might come from a social environment in which court proceedings do not play an important role. It is also necessary to protect the witness and ensure the proper (p. 458) understanding of his or her rights or even grant some kind of counselling for the time of his/her testimony. These steps can be staged by an independent body like the Registry, so that the parties do not need to get involved.

The third step, the substantial preparation of a witness through a party, which is often called ‘witness proofing’ is a different matter, and one highly contested.

At the ad hoc Tribunals witness proofing is being practised on a permanent basis, even if neither aim nor scope are obvious.⁴²⁹ The ICTY has in the leading case against Limaj⁴³⁰ and later⁴³¹ repeatedly held that the proofing of a witness is necessary for the full discovery of the truth. The necessity for a preparation of the witness is explained by the need of the witness to be informed about the indictment. Evidently prosecutors have been in contact with the witness and interviewed him/her during the investigation stage. However, that was at a time when the indictment was not yet drafted. Thus in advance of his/her testimony at trial the witness needs to be directed as to the actual charges. Despite a common definition of ‘witness proofing’ the Trial Chambers have attempted to limit the scope to adjusting inconsistencies arising from prior statements of the same or of other witnesses and to refreshing the witness’ memory, while ruling out training or tampering with a witness. The SCSL follows a similar avenue.⁴³² On the basis of the Limaj decision the OTP at the ICTY issued ‘Proofing Guidelines’, which entail a rather broad approach to witness proofing but have never been challenged by a chamber.⁴³³

The ICC deviated from this approach adopted by the ad hoc Tribunals and prohibited ‘witness proofing’. In the case against Lubanga the Pre-Trial Chamber⁴³⁴ held that it does not see itself bound by the practice of the ad hoc Tribunals in that matter by virtue of Art. 21 ICCSt. Looking at the ICCSt and the Rules the Pre-Trial Chamber found that a ‘familiarization’ of the witness with the surroundings and the layout of the court is not only admissible but mandatory for Page Id: 458References(p. 459) ensuring the well-being of the witness. As the safety of the witness is within the competence of the court, it is not for the Prosecutor to ‘familiarize’ the witness. This exercise will be undertaken by the Victims and Witnesses Unit. Witness proofing in the meaning of a substantial preparation of the witness, however, is inadmissible. It concluded that in several jurisdictions tampering with the witness would be considered unethical or even unlawful, so there is no general rule of international law allowing witness proofing as alleged by the ICC Prosecutor.

The Trial Chamber concurred one year later.⁴³⁵ As concerns the familiarization process, however, the Trial Chamber held that a witness is ‘not a witness for the court’ and not for one or the other party. Yet the witness will have been chosen by one of the parties who thus has a better knowledge and understanding for the needs of the witness. It is therefore advisable that the Victims and Witnesses Unit cooperate with the respective party in familiarizing the witness with the ICC and its procedure.⁴³⁶

As regards the witness proofing the Trial Chamber stressed further the differences between the ad hoc Tribunals and the ICC in particular as regards the role of the Prosecutor. According to Art. 54 (1) (a) ICCSt the ICC Prosecutor has to investigate in an objective manner. Witness proofing might be detrimental to this novel role compared to the ad hocs.⁴³⁷ Furthermore, the Chamber weighed the advantages and disadvantages witness proofing might have for the quest of the truth. It arrived at the conclusion that witness proofing is more likely to distort the truth as it might easily be misused as a ‘rehearsal’ of the live testimony.⁴³⁸

The practice to be adopted is as follows:⁴³⁹ The only contact the witness has with the Court is through the VWU. The party who has called the witness to the bench will advise the VWU as to the familiarization process. It will further provide to the VWU any prior statement of the witness. The VWU processes these documents to the witness who may use them to refresh his/her memory before testifying. After the familiarizing has ended, no contact between the party and the witness is allowed. Witness proofing is thus prohibited.Page Id: 459References(p. 460)

Not all commentators have welcomed these decisions of the ICC.⁴⁴⁰ Methodologically, the ICC has in that case entered the avenue to further emancipation from the ad hoc Tribunals. It has strengthened the maxim that the search for the truth is the governing principle of any procedural step.⁴⁴¹ Rendering largely irrelevant previous or national concepts of criminal procedure the risks and the pros need to be analysed from the functional perspective adopted by the ICC. In doing this, the ICC arrived at the conclusion that witness proofing adds little to the truth ‘but risks much’.⁴⁴²

It is interesting to note, however, that the ad hoc Tribunals did not find it necessary to reconsider its approach towards witness proofing after the ICC’s chambers’ verdict.⁴⁴³ The practice of witness proofing at the ad hoc Tribunals is well embedded into the overall procedural system. In particular, the mandatory cross-examination makes good for many risks identified by the ICC judges as being connected to witness proofing.⁴⁴⁴ Indeed, much relies on the competence of the adversary party and the courtroom skills of the counsel to detect and unfold constructed testimony.⁴⁴⁵ The ICC takes a different route, as cross-examination is not mandatory as has been shown above.⁴⁴⁶ A more cautious approach towards witness proofing is therefore more than apt for the ICC legal regime.

c. Summary

It remains largely unclear which line the Trial Chambers at the ICC will take. Even if the trial structure, as proposed above, is adhered to, the potential dormant in Art. 64 (6) (d) ICCSt is still to be seized. However, what can be derived from the practice adopted by the ICC Chambers thus far is that fact that the judges are not willing to follow any traditional national system or previous ad hoc Tribunals’ experience. The ICC is directed towards the aims of finding the truth and this loosens the bonds of any traditional system. Its perception is much more functionally directed towards this very aim. In that (p. 461) manner we can observe that the ICC neither puts the judge into the overall leading position nor does it stick to the formality of direct examination and cross-examination derived from a party-driven system. The ICC concept is one of communication and cooperation in the search for the truth. It might be that under these circumstances different Chambers adopt different trial structures.⁴⁴⁷ It is possible that one Chamber may even vary its approach on a case-to-case basis.

However, as has also been observed before, this approach has at least one rather worrying danger: the responsibility gap. This far it is unclear who at the end of the day bears the responsibility for the search of the truth. Who is responsible for determining that all the evidence necessary for the determination of the truth has been heard? It is submitted here that the Chamber itself must take on responsibility. This means that on appeal the allegation might be raised that the Chamber has not heard all the evidence necessary but failed to inquire the incident properly.

3. Phase 3: Determination of the sentence

After the decision on the question of guilt, the trial enters into the final stage, in which the sentence is being determined. Whereas the determination of guilt is a binary system, in which only a ‘yes’ or a ‘no’ is admitted as an outcome, the sentencing stage is rather more complex. The chamber must undertake a process of hearing evidence concerning the gravity of the crime and the individual circumstances of the convicted person and impose a sentence of imprisonment upon weighing the different aspects.⁴⁴⁸ The guilt of the offender has to be ‘translated’ into a numeric system of years of imprisonment. We are not concerned with the actual process of weighing, neither in the outcome. Several books have been written about this issue.⁴⁴⁹ What we are concerned with is the procedure which is to be applied in order to find the answer to this complicated question.

Whereas the law at the ICTY is somehow doubtful as Art. 24 (1) ICTYSt refers to the general practice in the former Yugoslavia, in practice the judges have tried to rely on ‘general principles of criminal law’ and the few precedents which were available (p. 462) on the international level.⁴⁵⁰ According to Rule 100 RPE ICTY the parties may submit any material relevant in order to assist the Trial Chamber in determining the appropriate sentence. In most cases this was done by hosting an additional hearing even if this not foreseen in the law concerning the ad hoc Tribunals.⁴⁵¹ Yet in order to speed up the proceeding, the ICTY judges changed the rules in 1998 and since then demand the parties to present sentencing evidence at the end of the trial, Rule 85 (A) (vi) RPE ICTY/ICTR. Rule 100 RPE ICTY applies only in cases of a guilty plea on the side of the accused. Consequently, the ICTY Chambers issue only one single judgment containing both the guilty verdict and the sentence.⁴⁵²

According to Art. 76 ICCSt the Trial Chamber will take into account all the evidence presented at the previous stage in deciding on the sentence. However, it might—and regularly will—be necessary to hear additional evidence in a separate hearing according to Art. 76 (2) ICCSt and Rule 143 RPE ICC.⁴⁵³ It will be necessary because the substance of the inquiry differs from the determination of guilt in the first phase of the trial. The parameters which are important for the determination of the sentence are laid down in Art. 78 (1) ICCSt and are further elaborated in Rule 145 RPE ICC. The basis of the decision on the sentence is to be seen in the culpability of the offender. This is reflected first in the gravity of the crime and the personal circumstances of the convicted person. In addition mitigating and aggravating circumstance need to be taken into consideration, Rule 143 (2) RPE ICC.⁴⁵⁴ As the age, education, and the social and economic condition of the convicted person have not been an issue during the first part of the trial, evidence concerning these matters will be presented to the Chamber in a new hearing. It might thus be necessary to include psychiatric and psychological reports and to hear from the convicted person (again).⁴⁵⁵

Whether or not the ICC will stage a pre-sentencing hearing or follow the ICTY in hearing sentencing evidence at the end of the trial is still unclear. Both ways are in accordance with the ICC Statute and Rules. One major advantage of having a separate sentencing procedure from the accused’s point of view is that s/he is freer to speak if the guilty verdict has already been passed, and a conflict with the freedom from self-incrimination is avoided.⁴⁵⁶ A separate hearing would thus be preferable from a human rights point of view.Page Id: 462References(p. 463)

D. Evidence (Hilde Farthofer)

There are only a few articles and rules included in the Rome Statute and its Rules of Procedure and Evidence concerning the prerequisites for submitting evidence; for example, requirements for admissibility. Commonly, the trial is inherently based on evidence tendered by the Prosecutor, by the defence, or by a witness. Hence, the categorization and the associated evaluation of evidence is a very important part of the trial. The rights of the accused can easily be restricted by, for example, extending the opportunity to take judicial notice of an adjudicated fact by the Court. Furthermore, when a single piece of evidence has been declared admissible, its probative force will be weighed by the judges at the end of proceedings.

For the purposes of this chapter, first, evidence which can be submitted will be categorized and analysed. Following that, the concept of taking judicial notice or at least accepting unproven evidence for the purpose of judicial economy will be discussed. The next part deals with the requirements of admissibility of evidence. Finally, the specific groups of persons who are granted relative or absolute testimonial or professional privilege by the legal framework of the ICC will be examined in detail.

I. Different forms of evidence

The two main categories of evidence, according to Art. 69 ICCSt, are testimonial and documentary evidence. Each category is subdivided into different forms and, consequently, the requirements posed for evidence, in particular regarding admissibility, differ widely. Therefore, it would be counterproductive to list every item which is permitted to be used as evidence, pursuant to the Rome Statute and the Rules of Procedure and Evidence. Trial Chamber I proceeds on the assumption that ‘the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited—at the outset—the ability of the Chamber to assess evidence “freely”.’⁴⁵⁷

As stated, one power granted by the judges is the free assessment of all evidence submitted by the parties, pursuant to Rule 63 (2) RPE ICC. Any finding by the Trial Chamber is clearly understandable because Art. 69 (2) ICCSt only refers to the testimony of a witness, recorded testimony of a witness, documents, and written transcripts. The wording does not specify what type of item is permissible to admit into evidence and what type is excluded. In the following, the main categories will be analysed inter Page Id: 463References(p. 464) alia with regard to the purpose for which the particular evidence can be introduced into the trial.

At the Nuremberg trials, the right to free evaluation of evidence had already been established in Art. 19 IMTSt and, furthermore, the Statutes and the Rules of Procedure and Evidence of the ad hoc Tribunals do not limit the admission of evidence by specifying the type. Rule 89 (C) RPE ICTY/ICTR/SCSL notes clearly that ‘any … evidence’ can be used to prove the guilt or innocence of the accused. The same provision is included in Rule 87 RPE ECCC.

1. Testimonial evidence

The existing hierarchical order between different types of evidence is pointed out by the first words in Art. 69 (2) ICCSt. Hence, the preferred evidence at trial is the live testimony of a witness. Only if there are exceptional reasons will the Chamber accept, for example, a written statement or a prior recorded statement of a witness. The general principle of oral testimony should be considered when dealing with evidence before international courts, but it is limited by the protection of the rights of the two main actors affected by a trial and its outcome, the accused and the witness.⁴⁵⁸

The accused has the right to due process. This encompasses, for example, the right to examine the witness who submits incriminating evidence against him or her. As a minimum safeguard, this should always be respected, according to Art. 67 (1) (e) ICCSt, if it is not in opposition to the right to life and security of the witness. Notably, nowhere in the text of the Rome Statute or the Rules of Procedure and Evidence is the word ‘cross-examination’ used. This emphasizes that the accused has the right to question the witness testifying against him/her but does not mean that he or she automatically has the right to cross-examine.⁴⁵⁹ Examination by the prosecutor, by the defence, and in particular, by the judges—also when conducted at different times—is the main requirement for permission to submit a written statement as evidence, pursuant to Rule 68 (a) RPE ICC.⁴⁶⁰

In contrast, Rule 85 (B) RPE ICTY determines that examination-in-chief, cross-examination, and re-examination should be allowed in each case. Cross-examination is limited to the subject matter of the evidence-in-chief and matters affecting the credibility of a witness. Rule 90 (H) (ii) RPE ICTY points out the purpose of cross-examination of a witness; that is, to put questions on issues on which the testimony is contradictory.⁴⁶¹ The opportunity to cross-examine a Page Id: 464References(p. 465) witness must be separated from the request to recall a witness. In Nyiramasuhuko et al., the Chamber stated that ‘[t]he recall of a witness should be granted only in the most compelling of circumstances where further evidence is of significant probative value and not of a cumulative value’.⁴⁶²

Regarding the rights of the witness, the Court has to enforce adequate measures to protect witnesses as well as victims, according to Art 68 (1) ICCSt. The Chamber concerned must take all necessary steps in order to establish the security and well-being of the witness and of persons in close relationship to him or her. For this purpose, the Registry has created a Victims and Witnesses Unit,⁴⁶³ pursuant to Art. 43 (6) ICCSt, which recommends appropriate protection measures for prosecution as well as defence witnesses, according to Art. 68 (4) ICCSt. In particular, the nature of the crime must be taken into account by the Court, for example, matters of sexual violence, as well as the specific concerns of individual witness, such as close relationships to victims of the crime in question.

Before testifying, according to Art. 69 (1) ICCSt, the witness must give a solemn declaration before the Court. Thereby he or she confirms that the content of his or her testimony will be truthful and that he or she will fully answer the questions.⁴⁶⁴ The Trial Chamber in Lubanga decided that: ‘Rule 74 is a long and complicated provision, and for any witness—and particularly young former child soldiers who are unlikely previously to have been inside a courtroom—it would be extremely difficult to understand and thereafter to react appropriately to a judicial explanation of the operation of this Rule …’⁴⁶⁵

According to Rule 90 (A) RPE ICTY and Rule 90 (B) RPE ICTR, the witness has to give the solemn declaration before commencing testimony. The wording of the declaration is similar to the formulation in Rule 66 (1) RPE ICC. Rule 90 (B) RPE SCSL includes two options for the declaration, one of which includes an oath on the Bible.

The Court is allowed to make exceptions to this principle, pursuant to Rule 66 (2) RPE ICC, if the witness does not completely understand the meaning of testifying under oath. This is an important point regarding witness testimonies in cases of involvement of children, as for instance during criminal prosecutions for the Page Id: 465References(p. 466) recruitment of child soldiers. In particular, the age of the witness may cause a problem regarding the undertaking associated with a solemn declaration. A legally valid submission of an oath requires that the person concerned knows that he or she must tell the truth, but also that he or she knows what impact a lie or an incomplete answer could have for him or her. Refraining from the solemn declaration, pursuant to Art. 69 (1) ICCSt and Rule 66 (1) RPE ICC, does not necessarily mean inadmissibility of testimony. According to Rule 66 (2) RPE ICC, the Trial Chamber has the power to accept such testimonial evidence if the person, for example, is a child who is mature enough to understand that he or she must tell the truth and merely describes his or her own experiences. The same difficulties may occur with an elderly person who cannot follow the explanation why he or she must give a solemn declaration before testifying. In such cases, too, the exclusion or the admission of such testimony lies within the discretion of the Court.

Rule 90 (B) RPE ICTY and Rule 90 (C) RPE ICTR/SCSL provide the same exception exclusively for children, that is, to refrain from an solemn declaration when testifying at the ad hoc Tribunals. Furthermore, the first words of Rule 90 (C) RPE SCSL, namely ‘every adult witness’, clearly point out that a child need not testify under oath. Notably, Rule 24 (2) RPE ECCC provides a list of persons who do not have to testify under oath, for example, a father or sister of the charged person, and also a child under the age of fourteen.

In Karadžic the prosecution witness list comprised seventy-seven witnesses for various purposes, including journalists and expert witnesses for background information about the history, and military analysis.⁴⁶⁶ Bearing in mind the importance of witnesses for the establishment of the truth in cases where mass atrocities have been committed, the hierarchy, that is, primarily live testimony, thus seems highly reasonable.

a. Witness

As mentioned, witnesses should give their testimony viva voce before the Court. The Appeals Chamber in Bemba rightly determined that the first sentence of Art. 69 (2) ICCSt ‘makes in-court personal testimony the rule, giving effect to the principle of orality’⁴⁶⁷ and the Trial Chamber in Katanga and Chui clearly noted that the principle of oral testimony is ‘one of the key principles of trials before the ICC’.⁴⁶⁸

According to Rule 89 (F) RPE ICTY, a witness must testify directly and, only if it is in the interest of justice, the Chamber may allow a statement in written Page Id: 466References(p. 467) form. Until now, the Rules of Procedure and Evidence of the other ad hoc Tribunals have not dealt with this issue in such an explicit form but encompass in Rule 90 (A) RPE ICTR/SCSL the formulation that a witness shall be heard directly.⁴⁶⁹ This wording implies the principle of oral testimony without clearly establishing a hierarchy between live testimony, written statements, and transcripts.

In specific circumstances the Chamber is able to make an exception from this guiding principle. According to Rule 67 (3) RPE ICC and Art. 69 (2) ICCSt, the Court can accept testimony by means of audio or video-link technology if it is necessary for the safety, the physical and psychological well-being, dignity, and privacy of the witness.⁴⁷⁰

According to Rule 75 (B) (iii) RPE ICTY/ICTR/SCSL, the Chamber can order ‘one-way closed circuit television’ to protect the well-being of witnesses and victims. Use of this technology may be justified by the mental condition of the witness. According to Rule 81bis RPE ICTY, the technological measures can be requested by one of the parties as well as ordered proprio motu by the Court. In Karadžic, the Chamber reiterated three criteria to meet, also mentioned in other decisions of ICTY:

(i) [t]he witness must be unable, or have good reasons to be unwilling, to come to the Tribunal;

(ii) the witness’s testimony must be sufficiently important to make it unfair to the requesting party to proceed without it; and

(iii) the accused must not be prejudiced in the exercise of his or her right to confront the witness.⁴⁷¹

The use of testimony via video conference enshrined in Rule 26 RPE ECCC is limited to such cases where it is not ‘seriously prejudicial to, or inconsistent with defence rights’.

During testimony by means of audio or video-link technology, an officer of the Registry must be at the location of the witness. This procedure should guarantee that the witness testifies truthfully and without being influenced by a third party. The use of this technology is not undisputed in cases when it is permitted that all three parties to the trial—the prosecutor, the defence, and the judges of the chamber—Page Id: 467References(p. 468) have the opportunity to question the witness.⁴⁷² Specifically, in the case of a child witness or a witness who is also a victim of a crime of sexual violation, the Court should try to prevent secondary victimization and should allow such technology-based testimony. Nevertheless, it should remain an exception to general face-to-face questioning.

However, the Rules of Procedure and Evidence include limitations when questioning a witness who is concurrently a victim of sexual violence, for example the ‘credibility, character or predisposition to sexual availability of a victim or a witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness’, according to Rule 70 (d) RPE ICC. Moreover, before the defence can submit evidence to challenge a crime of sexual violence on the basis, for example, of the supposed consent of the alleged victim, it must notify the Court of its intention and prove the relevance of the evidence for the particular case, pursuant to Rule 72 (1) RPE ICC.

In general, a witness called before the Court appears voluntarily but if not the Court has the opportunity to issue a subpoena. With very few exceptions,⁴⁷³ all witnesses can be compelled to testify before the ICC. However, a point of criticism regarding the execution of such a subpoena is the lack of any means of implementation by the Court. It must rely on the ‘voluntary’ cooperation of a state and has no opportunity to compel the state, for example, to surrender a witness to the Court. Pursuant to Rule 65 RPE ICC, a witness appearing before the Court has the duty to answer any question posed by the ‘other’ side; that is, a witness of the defence must also answer the questions posed by the prosecution. If he or she refuses to perform his or her obligation after a warning, the Court can charge the witness, according to Art. 71 ICCSt, with deliberate refusal to comply with a court order.⁴⁷⁴

Pursuant to Rule 54 RPE ICTY/ICTR/SCSL, both parties can request the issue of summon or subpoena to compel a witness to appear before the Court. A summons as well as a subpoena are a means of last resort; that is, they should only be issued if the necessary information cannot be obtained by other means.⁴⁷⁵ Some years ago, the Rules of Procedure and Evidence of the ICTY were amended and now according to Rule 54bis RPE ICTY, states have an obligation to implement an issued summons on their territory. Regarding the other tribunals, the Court has no power to constrain states to cooperate in Page Id: 468References(p. 469) particular, to extradite their own nationals or to compel state officials to testify before the Court.⁴⁷⁶

b. Self-incriminating testimony

Testifying before a Court always carries a risk for the witness of self-incrimination, in particular if the witness is the accused who testifies before the Court. The accused has the right to remain silent⁴⁷⁷ and therefore cannot be compelled to testify, pursuant to Art. 67 (1) (g) ICCSt. Therefore, an important source for establishing the truth cannot be used as evidence. This right is not absolute and some courts are ready to balance it against the establishment of an effective judiciary. Nevertheless, one should deal with this issue carefully because it cannot be expected that the accused will tell the truth and thereby put him or herself at risk of conviction. Therefore, the value of an accused’s testimony is highly questionable.

The same scenario is provided for in the procedural law of the ICTY, pursuant to Art. 21 (4) (g) ICTYSt; that is, the accused cannot be compelled to testify before the Court. The Trial Chamber rightly pointed out that ‘[t]wo of the three accused in the present case, namely Haradin Bala and Isak Musliu, did not give evidence at trial. The Chamber has not, of course, attached any probative relevance to their decision.’⁴⁷⁸

According to Rule 85 (C) RPE ICTY, the accused may appear as a witness in his or her own defence if he or she wishes to do so. Furthermore, in the same above-mentioned decision the Trial Chamber clearly noted that ‘Fatmir Limaj … testified in his own defence before the Chamber. He did so before any other Defence witnesses were called, which counts in his favour in the assessment of credibility.’⁴⁷⁹

In order to circumvent a sanction for false testimony which emerges from a testimony under oath, the accused has the right to make an unsworn written or oral statement in his or her defence, according to Art. 67 (1) (h) ICCSt.⁴⁸⁰ Confronting this provision with the wording in Rule 66 (3) RPE ICC, it becomes clear that the right of the accused to testify without giving a solemn declaration is an exception to the rule. This approach is particularly unusual for lawyers in the common law tradition because in their national legal systems such testimony would be inadmissible. In contrast, in the civil law tradition the accused never gives testimony under oath.⁴⁸¹Page Id: 469References(p. 470)

As a minimum guarantee, the content of Art. 14 (3) (g) ICCPR determines that the accused ‘[can]not be compelled to testify against himself or to confess guilt’. Rule 84bis (A) RPE ICTY provides that ‘the accused may, if he or she so wishes, and the Trial Chamber so decides, make a statement …’. Moreover, the accused shall not be compelled to make a solemn declaration and shall not be examined on the content of a statement. The wording makes clear that it is not for the accused alone to decide if he or she wants to make an initial comment on the indictment, because the Chamber has the power to reject such a statement. None of the other ad hoc Tribunals provide such a possibility for the accused in their Rules of Procedure and Evidence.

According to Art. 55 (2) ICCSt, before questioning in the course of investigation is carried out, the Prosecutor has to inform the alleged perpetrator about the suspicion against him or her. If the investigating staff of the OTP fail to do so the statement obtained will be rendered inadmissible, pursuant to Art. 69 (7) ICCSt.⁴⁸² Furthermore, the person concerned must be informed about the right to remain silent and the right to request legal assistance. Of course, it is up to the suspect to decide if he or she wants to waive the right to be counselled. Rule 112 (1) RPE ICC includes a list of prerequisites to be complied with during the questioning, inter alia that it shall be video- or audio-recorded. The Prosecutor must follow the procedure, pursuant to Rule 112 (1) RPE ICC, although exceptions are permitted if the circumstances render regular conduct impossible and, at the very least, a written transcript must be produced.

In Halilovic the Chamber noted that a prior statement by the accused could not be declared admissible because the statement was obtained by questioning him as a witness, and therefore not under the requirements of Rule 42 (A) (iii) RPE ICTY. In the course of investigations, the person concerned voluntarily gave a statement to the prosecution which years later ended up at the bar table as incriminatory evidence. In its decision, the Chamber did not clearly note that the admissibility of such evidence would breach the right of the accused against self-incrimination but instead referred to Rule 43 RPE ICTY. The suspect was questioned contrary to the prescribed way of proceeding; that is, without audio- or video-recording the testimony. The accused did not waive his right to remain silent because he testified as a witness and, hence, had no opportunity to challenge the content of the statement.⁴⁸³ The Appeals Chamber later confirmed the finding of the Trial Chamber.

According to Rule 66 (3) RPE ICC, before starting to testify, all witnesses have to be informed of the offences included in Art. 70 (1) (a) ICCSt; that is, of contempt Page Id: 470References(p. 471) of court.⁴⁸⁴ If the issue of self-incrimination becomes official for the first time during a hearing, the Chamber must interrupt the testimony and has to provide the opportunity for the witness to obtain legal advice, pursuant to Rule 74 (10) RPE ICC. The Trial Chamber decided to recommend to former child soldiers who were now over the age of eighteen that ‘the relevant lawyers must … provide appropriate advice to their clients as regards self-incrimination’⁴⁸⁵ in advance of giving testimony. The reasoning was that the Court could not guarantee that testimony would not be used in prosecuting them by the national courts in the Democratic Republic of Congo.

If the problem is already known, the prosecutor, the defence, the accused, or the witness must immediately inform the Chamber about the possibility of self-incrimination and request an in camera hearing, non-disclosure of the identity of the witness concerned, and non-disclosure of the content of the evidence, pursuant to Rule 74 (7) RPE ICC. Generally, the request will be posed by the party on whose behalf the witness is testifying.

Another possibility for the witness avoiding the consequences of self-incriminatory testimony might be to negotiate in advance an agreement with the prosecution. Such an agreement may lead to the inadmissability of incriminatory evidence against the witness or to a plea bargain resulting in a reduced sentence.⁴⁸⁶

In order to facilitate the testimony of a witness, the Court has the power to guarantee that the testimony and its content will be kept confidential and will not be used directly or indirectly against the person concerned, according to Rule 74 (2) and (3) (c) RPE ICC. Before guaranteeing this testimonial privilege to the witness, the Court should hear the Prosecutor. Rule 74 (5) RPE ICC includes a list of reasons which the Court may take into account in order to decide a specific case; for example, the importance of the testimony or the nature of the alleged incrimination. After examining the legal situation in the Democratic Republic of Congo regarding the testimony of former child soldiers, the Trial Chamber in Lubanga pointed out that: ‘the only way that the court can give a truly effective assurance to any of the witnesses who are to come that they will not be prosecuted for previous crimes on account of his or her testimony is to implement Rule 74(2) with all of the attendant difficulties that would follow over the lack of a public trial.’⁴⁸⁷

Rule 90 (E) RPE ICTY/ICTR/SCSL permits a witness to refuse to answer questions which involve a risk of self-incrimination. The Court may compel a witness Page Id: 471References(p. 472) to make a statement but the testimony obtained cannot be used to prosecute that witness. Rule 28 RPE ECCC includes a similar provision with the further proviso that the Court may give formal assurance to the person concerned. In deciding this issue, the Court should balance the importance of the testimony for the efficient prosecution and the right of the witness not to testify against him or herself. However, the testimony can be used to prosecute the witness for the offence of giving false testimony.

In addition, the Chamber must take into consideration the personal relationship between the witness and the accused. According to Rule 75 (1) RPE ICC, the Court should not request a witness to incriminate a family member. In other words if the witness is a spouse, a child, or a parent of the accused, he or she should not be compelled to incriminate the family member but, nevertheless, the witness can choose to do so.

In proceedings before ad hoc Tribunals, the potential incrimination of a family member cannot be used as justification for a witness not to testify or not to answer certain questions. The right of witnesses to object to make a self-incriminating statement is not extended to the incrimination of family members. This right is restricted presuming that it would serve the interests of establishing the truth. As mentioned, one cannot assume that a witness will tell the truth if this would lead to the conviction of a family member. For that reason it does not seem the right approach to undermine the rights of the accused and the witness in order to make the truth-finding process more effective.

c. Rule 82 RPE ICC witness

An exception of all the above-mentioned provisions is a witness who testifies under Rule 82 RPE ICC. He or she cannot be compelled to answer any question relating to the origin of material submitted by that witness or to give any additional information if the witness objects due to reasons of confidentiality, according to Rule 82 (3) RPE ICC.

This testimonial privilege is based on the principle provided in Art. 54 (3) ICCSt⁴⁸⁸ and aims at facilitating cooperation between the prosecution and, for example, intergovernmental organizations like the UN or governments to hand over relevant information which can affect the interests of the provider. The testimony of a representative of the supplier cannot be requested by any party to the trial because the only way to obtain such testimony would be by consent.⁴⁸⁹

The same exception is determined in Rule 70 (D) RPE ICTY/ICTR/SCSL. This provision clearly shows the political interests which have found their way into the legal framework of the ad hoc Tribunals as well as of the ICC because the regulation (p. 473) is based on the consideration that national political and security interests are valued higher than the interests of the community as a whole.

The provision also affects the rights of the accused. He or she has the opportunity to challenge information as well as to examine the testimony of a witness, testifying under Rule 82 RPE ICC, but does not have the right to cross-examine that witness on the origin of the information provided or on any other subject due to confidentiality.

Under to Rule 70 (E) RPE ICTY/ICTR/SCSL, the accused has the right to challenge any evidence, regardless of the provider. Without knowing the original source of evidence, it will be quite hard to produce counter-evidence or to challenge the credibility of the source. On that account, the provision should be applied with caution because of the potential risk of infringing the rights of the accused. One has to bear in mind that in this regard, abuse is inherent. In general, the Prosecutor is obliged to disclose all material to the defence but this information cannot be subject to disclosure and, therefore, exculpatory evidence can also be affected.⁴⁹⁰

d. Expert witness

The ICTY provides a definition of the term ‘expert witness’. Thus, it is widely accepted ‘to be a person whom by virtue of some specialised knowledge, skill or training can assist the trier of fact to understand or determine an issue in dispute (and to that end testifies)’.⁴⁹¹ The ICTR further stated on this issue that an expert witness is a witness ‘whose testimony is intended to enlighten the Judges on specific issues on a technical nature, requiring special knowledge in a specific field’.⁴⁹²

The fields where expertise is needed as evidence in court to make the information available and more understandable are multifarious, in particular regarding the background of an ongoing conflict. The following list is not exhaustive, but gives some indication of what kinds of fields might require expert opinion: historic, linguistic, forensic, military, psychiatric, legal, and technical.

According to Regulation 44 (1) RegC, the Office of the Registrar should create and maintain a list of experts. The list should be available for every participant and organ of the Court. Neither the OTP nor the defence is forced to select their experts from the list but if they choose someone from outside the list, they must provide the necessary professional information about the person concerned so that the Chamber can evaluate his or her qualifications for the specific purpose.⁴⁹³ The Page Id: 473References(p. 474) instruction of the expert can occur jointly or separately by the Prosecutor and the defence or proprio motu by the Chamber. The Trial Chamber stated in this regard⁴⁹⁴ that it would ‘favour, where possible, the joint instruction of expert witnesses’ by reasoning that this would obviously save costs and time.⁴⁹⁵

Neither the Rome Statute nor the Rules of Procedure and Evidence provide a specific regulation providing requirements regarding the testimony of expert witnesses. Thus, the above-mentioned provisions regarding a witness also apply to the testimony of an expert witness. Also the expert must issue a solemn declaration at the beginning of his or her examination and the opposing party has the right to question him or her and, further, to provide a different expert witness to counter the opponent’s expert.⁴⁹⁶ In contrast to other witnesses, the party who admitted the expert witness into evidence has to examine his or her curriculum vitae before asking substantive questions. In the course of that examination all publications, books, and articles of the expert as well as his or her position in specific professional circles will be relevant and can be a matter for examination by the opposing party.

The ICTY Trial Chamber stated clearly that the party calling the expert witness must provide proof that the expert witness has the necessary knowledge, skills, and training in the area needed and, furthermore, is giving ‘his or her expert opinion in full transparency of the established or assumed facts’.⁴⁹⁷ This does not mean that the expert must possess first-hand knowledge to be qualified to testify before the Court.⁴⁹⁸

In Stanišic and Župljanin the Chamber decided that a close relationship between the party calling on his or her expertise and the expert witness does not make the expertise inadmissible, even if that witness was engaged in ‘the investigation or preparation of the Prosecution or Defence case’.⁴⁹⁹ The Chamber reasoned that the opposing party has the possibility of challenging the credibility, reliability, and relevance of the expertise during cross-examination.⁵⁰⁰ In national procedural Page Id: 474References(p. 475) law, for example in Germany, any close contact between one of the parties and the expert witness would induce a suspicion of bias and subsequently would lead to rejection of that person as an expert witness.⁵⁰¹

The ICTR adopted another approach by holding that an expert witness ‘must … be impartial in the case’ and that a person ‘who is accused by the Tribunal for crimes related to those with which [the accused] is charged and, under similar counts, cannot be assured’.⁵⁰²

Contrary to a ‘normal’ witness, an expert witness can attend proceedings inside the courtroom to provide ‘assistance to the Accused’⁵⁰³ as well as to the Prosecutor by analysing the testimony of other witnesses. Before testifying, the expert must give a written statement to the contracted party and, subsequently, this report has to be disclosed to the other parties in the trial.⁵⁰⁴ All expert reports⁵⁰⁵ are based on personal opinions and findings and therefore can be challenged. One has to bear in mind that the expert report as well as the expert witness come within the category of hearsay evidence because of course he or she was not present when the incident occured and instead examines the situation retrospectively.⁵⁰⁶ Notably, such evidence is admissible before the Court but can be challenged by the opposing party in the course of the proceedings.

2. Documentary evidence

The term ‘documentary evidence’ is neither defined in the Rome Statute nor in its Rules of Procedure and Evidence. In Musema the Trial Chamber of the ICTR gave a definition of the notion ‘document’ and noted in this context that:

the term ‘document’ is interpreted broadly, being understood to mean anything in which information of any description is recorded. This interpretation is wide enough to cover not only documents in writing, but also maps, sketches, plans, calendars, graphs, drawings, computerized records, mechanical records, electro-magnetic records, Page Id: 475References(p. 476) digital records, databases, sound tracks, audio-tapes, video-tapes, photographs, slides and negatives.⁵⁰⁷

Contrary to this, in some national legal systems, for example in Austria,⁵⁰⁸ audio- or video-recorded evidence, if not a recorded questioning, comes within ostensible evidence (Augenscheinbeweis) and not within documentary evidence and, therefore, the term ‘documentary evidence’ will not be universally interpreted so broadly.

The main purpose of the introduction of documentary evidence into trial is not to prove the acts and conduct of the accused charged in the indictment but rather to prove circumstances; for example, the history of the region where an armed conflict took place or other background information which could help the Court to gain a better understanding of the events which led to the charges.

The practice of reverting mainly on documentary evidence had already been implemented in the course of the Nuremberg Trials. The Court declared admissible the use of affidavits as well as the use of summaries of recorded testimony regardless of the availability of the witness concerned.⁵⁰⁹ This approach is also highly questionable when it is used to expedite the trial because it puts the rights of the accused to examine the witness testifying against him/her in jeopardy.

The formulation ‘acts and conduct of the accused’ is defined as ‘deeds and behaviour of the accused’⁵¹⁰ and therefore, does not comprise criminal acts or conduct of other persons who are individually responsible for the committed crimes.⁵¹¹

A difference regarding the probative force of proof is the time and the purpose of origin. Inherently, contemporaneous documents, for example military orders or reports produced by members of a peacekeeping mission during an armed conflict, are accepted as authentic and the content as truthful. Understandably, it is believed that the person who produced the document had not noticed at the moment of its creation that it may later be used as evidence at trial.⁵¹² The presumption of its Page Id: 476References(p. 477) veracity remains until a successful rebuttal. This approach interferes with the right of the accused to a fair trial and, therefore, the Court has to deal cautiously with this issue and should not lose sight of the overall picture.

Another matter are documents which are produced after the event, for example for preparation of court proceedings. This kind of evidence has to be corroborated or has to be introduced by a witness, otherwise the Court must examine carefully if the evidence fulfils the requirements of admissibility, in particular if it is evidence from a reliable source.

In the following, documentary evidence is divided into five main groups: (a) written statements or transcripts, (b) impeachment documents, (c) court documents, (d) reports, books, and other documents, and (e) forensic evidence and other expert reports. Bear in mind that these categories overlap and, therefore, the requirements of more than one group will potentially be met by the same piece of evidence.

a. Written statements or transcripts

According to Rule 68 RPE ICC, the Court can ‘allow the introduction of previous recorded audio or video testimony of a witness, or the transcript or other documented evidence of this testimony’. The provision includes two limitations. Firstly, only if the prosecution as well as the defence has had the possibility to examine the witness is the statement admissible. If this requirement is not fulfilled, the admission of the statement depends on the approval of the witness concerned that the transcript can be read out at trial or the recorded testimony played. Secondly, the witness must be presented in court and, consequently, is available to answer questions of the parties to the trial if necessary.

Rule 89 (F) RPE ICTY allows rendering admissible not only live testimony by a witness but also a written statement or transcript ‘where the interests of justice allow’.⁵¹³ According to Rule 92bis (C) RPE ICTY, the Chamber has discretionary power to decide after a hearing if the cross-examination of the witness is necessary or if the written statement will be admissible without live testimony.⁵¹⁴

In addition, under Rule 92bis (A) RPE ICTY/ICTR/SCSL, the content of a written statement may not concern the acts or conduct of the accused but, Page Id: 477References(p. 478) rather—as described in Rule 92bis (A) (i) RPE ICTY/ICTR but notably not in the Rules of Procedure and Evidence of the SCSL—might consist of a general or statistical analysis of the ethnic composition of the population or might relate to issues of the character of the accused. The arguments for and against admission of a written statement listed in Rule 92bis are not exhaustive.⁵¹⁵

According to Rule 92ter RPE ICTY/SCSL, a transcript or written statement of a witness is admissible if the judges are satisfied that the three listed prerequisites are met; that is: (1) the witness is present in court; (2) the judges can cross-examine the witness; and (3) the witness has given a declaration that the content of the transcript or written statement reflects his or her personal experiences. Pursuant to Rule 92bis (B) RPE ICTY, the Chamber has discretion to dispense with attendance of the witness at Court, if he or she attests that the content of the written statement is truthful and correct. The issue of the declaration must be witnessed by a person authorized in accordance with national law or by the Presiding Officer appointed by the Registrar. The provision mainly concerns circumstances where a witness had just testified in one trial and will testify on the same issues again. The Chamber might refrain from renewed testimony if the cross-examination in the previous trial was conducted properly.⁵¹⁶ The provision of Rule 92bis RPE ICTY clearly puts the rights of the accused in jeopardy because the rights of the defence are restricted by refusing adequate opportunity to challenge the admitted evidence.

Rule 68 RPE ICC does not really fit the case when the witness is deceased or unobtainable, for example after a video interview with investigators of the Prosecutor but without involvement of the defence. Art. 56 ICCSt provides the possibility for preserving the testimony of a witness by informing the Pre-Trial Chamber of the impending death of the witness concerned. In Katanga and Chui the Trial Chamber had to deal with two deceased witnesses. The testimony of one of the witnesses was audio-video recorded. The Chamber stated that the defence as well as the judges could view the tapes and therefore convince themselves of the demeanour of the witness, and if all other requirements were met, it would be admissible at trial.⁵¹⁷ The second witness gave a manuscript to the Prosecutor. This manuscript was written shortly after the attack in Bogoro and contained information about the historical background of the Page Id: 478References(p. 479) armed conflict in the Democratic Republic of Congo as well as of the alleged role of the accused within the FNI⁵¹⁸-FRPI.⁵¹⁹ The Chamber decided that the manuscript was a contemporaneous document and hence admissible until its rebuttal.⁵²⁰

Commonly, this kind of evidence is admissible but probably has lesser probative value if it is not corroborated by other testimony or documentary evidence. The Trial Chamber noted in Bemba regarding the use of written statements of witnesses that: ‘the introduction of such prior-recorded testimony remains an option which should be adopted only in specific and exceptional circumstances.’⁵²¹

Documentary evidence also encompasses diaries as, for example, submitted by a witness in Katanga and Chui,⁵²² or affidavits, written statements which were carried out before a notary or a person with similar responsibility as, for example, submitted by the defence in Lubanga.⁵²³

In contrast, the Rules of Procedure and Evidence of the ad hoc Tribunals deal explicitly with the event when a witness dies before testifying or is no longer available. According to Rule 92ter (A) (ii) RPE ICTY/SCSL and Rule 92bis (C) (ii) RPE ICTR, the Chamber has to balance the circumstances in which the statement or transcript was made and must come to the conclusion that there are reasonable indicia that the source is reliable. Before rendering a statement of a deceased witness admissible, the Chamber must divide the statement into parts and must evaluate every part individually, and not just the statement as a whole.⁵²⁴ Furthermore, Rule 92bis RPE ICTR stipulates that the decision of the Court should be made on a case-by-case basis.⁵²⁵Page Id: 479References(p. 480)

b. Impeachment documents

Impeachment documents will be submitted by the opposing party to challenge the credibility of a witness testifying at trial. For this purpose, the impugning party can use all kinds of evidence, for example a military order but also a prior statement given by the same witness during the course of the investigation. The latter is only admissible within certain limits. In Katanga and Chui, the Prosecutor presented a prior statement of a witness to that witness, and asked them to read (in silence) a specific passage. Afterwards the prosecution posed questions on that part of the statement. The Chamber rejected a motion by the defence to admit the prior statement as a whole into evidence, although already submitted in parts by the Prosecutor, by noting that it is well-established practice at the ICC ‘not to allow prior statements of witnesses who appear before it into evidence’.⁵²⁶ In the case under consideration, the defence only had the opportunity to use that specific part of the statement during cross-examination.

No limitation regarding the phase of the trial is proposed in the Rome Statute and, therefore, such evidence can be introduced at any phase of trial. In contrast, rebuttal evidence can only be introduced at trial if it relates to a significant issue and it suddenly comes up during evidence by the opposing party.⁵²⁷

In Lubanga, the defence argued that the prosecution could not submit new incriminating evidence after closure of the prosecution case because the only permitted new evidence tendered by the prosecution could be ‘material designed to test or challenge the credibility of a witness or to refresh his memory’.⁵²⁸ The Trial Chamber disagreed with the defence opinion and noted that ‘[t]he Rome Statute framework does not apply fixed stages for the presentation of evidence during the trial, and in this the ICC differs from the position in some other courts or tribunals.’⁵²⁹

Impeaching documents can be used to challenge the credibility of a witness as well as an accused but only if it does not amount to ‘fresh evidence’ which has new incriminating value. In addition, the rights of the accused would be violated and, therefore, it is up to the Prosecutor to prove the ‘exceptional circumstances’ for the introduction of impeaching documents.⁵³⁰Page Id: 480References(p. 481)

Both parties have the right to challenge the credibility of witnesses of the opposing party as well as their own witnesses. In Popovic et al., the Appeals Chamber noted that ‘a calling party must seek the permission of the Trial Chamber to impeach its own witness in relation to the credibility’ and, furthermore, the cross-examination of the witness of the calling party underlies the control of the Trial Chamber.⁵³¹

c. Court documents

The submission of judicial documents can take place for different purposes. The main purpose is to challenge the credibility of a witness who has already testified in another trial but it can also be used, for example, as proof of a recent conviction or acquittal based on the same charges. Unfortunately, the Court does not apply the same caution when dealing with documents from national courts as when dealing with documents from other trial chambers of the ICC or from the ad hoc Tribunals.⁵³² One has to bear in mind that a judgment only reflects the findings of the Court but cannot be used as evidence for the facts on which the judgment is based. Moreover, the Chamber has discretion to take judicial notice of facts originating in decisions or judgments of another Chamber of the ICC.⁵³³

d. Reports, books, and other documents

Other forms of documentary evidence may be reports, books, and so on introduced as evidence at trial. Their main purpose is to give an overview of historical background information and very seldom to prove specific acts or conduct of an accused as charged in the indictment. Such evidence is used for better understanding, for example why an armed attack occurred in which the accused allegedly committed the crimes in question.

In Lubanga, about ninety documents were made available by the UN on behalf of the Under Secretary General for Peacekeeping Operations to the Prosecutor, the bulk of them military daily reports. The disclosure of the documents was delayed because of the possible endangerment for the UN Mission in the Republic of Congo.⁵³⁴ In the majority of cases, the authors of the entries in contemporaneous books or reports are unknown, as with the daily reports in a military logbook, which are written by different persons. Nevertheless, the majority of documents are official records and, therefore, bear sufficient indicia of reliability, for example official Page Id: 481References(p. 482) reimbursement receipts issued by the OTP or a contemporaneously created primary school record.⁵³⁵

e. Forensic evidence and other expert reports

The last category of evidence tendered at trial encompasses expert reports and forensic evidence. Both forms of evidence are based on scientific arguments and therefore should be used with caution. An expert report is a rendering of the personal opinion of an expert, that is, a person who specializes in a certain field of social, forensic, or other science. As a result, every expert report can be disproved by another expert in the same area.⁵³⁶

In Stanišic and Župljanin the Chamber defined the criteria that an expert report must meet to be admissible:

— the proposed witness is classified as an expert,
— the expert report or statement meets the minimum standard of reliability,
— the expert report or statement is relevant and of probative value, and
— the content of the expert report or statement falls within the accepted expertise of the expert witness.⁵³⁷

Even if all requirements are met and the Court accepts the expert as witness, this does not signify that the report will be automatically admitted into evidence.⁵³⁸

The report must contain all sources on which the results are based because otherwise the opposing party will not have the opportunity to review the report properly and to prepare for cross-examination of the expert witness. If the report does not include the source, this will probably affect the admissibility of the report as well as the testimony.

Experts consulted by the International Criminal Court have comprised a wide range of scientific and military fields, for example expert knowledge of the linguistic characteristics of region, the determination of the age of a former alleged child soldier, or a forensic study based on the exhumation of human remains. For the purpose of the trial a written statement can be sufficient if the opposing party does not object to the findings included in the report. As a result the opposing party would waive its right to examine the expert witness face to face.

Pursuant to Rule 94bis RPE ICTY/ICTR/SCSL, both parties to the trial have the right to introduce an expert witness to give evidence in the proceedings. The Page Id: 482References(p. 483) expert has to give a written statement or report to his or her contracting entity in advance. The time frame for disclosure to other party is different depending on the ad hoc Tribunal; thirty days at the ICTY and ICTR, and only fourteen days at the SCSL.

After disclosure the opposing party has three options, pursuant to Rule 94bis RPE ICTY/ICTR/SCSL. First, it can accept the written statement and consequently will lose its right to cross-examine the expert witness, according to Rule 94bis (C) RPE ICTY/ICTR/SCSL. Secondly, it can file a motion for cross-examination of the expert witness, to challenge the credibility of that witness, and lastly, the defence can challenge the qualification of the expert witness,⁵³⁹ because of a lack of knowledge in the specific area.

The wide range of fields where expert statements are needed is significant. In Lubanga, the Trial Chamber ordered inter alia an expert report ‘on names and other social conventions in the Democratic Republic of the Congo’.⁵⁴⁰ In the course of the proceeding, the Prosecutor as well as the defence will submit various expert reports as evidence, as, for example, in Katanga and Chui; inter alia the Prosecution submitted an expert report on ballistics⁵⁴¹ and several forensic expert reports on human remains found near to where the alleged attack occurred.⁵⁴²

As mentioned earlier, an expert report carried out on a specific issue does not automatically mean that the findings thus obtained are without uncertainty and cannot be disproven. In Lubanga a wrist and mandible X-ray were taken from an alleged child soldier to determine his age.⁵⁴³Page Id: 483References(p. 484)

This method is also used in some European countries for age determination of minor asylum seekers and is highly criticized. For example, the German District Court of Braunschweig noted that expertise based only on a wrist X-ray did not suffice to determine the exact age of a person.⁵⁴⁴ Regarding determination of age, the German Administrative Court of Düsseldorf referred in its decision to an expert report by a paediatrician who stated that in the case concerned the age determination was not possible because the wrist X-ray of the person concerned led to the conclusion that he was eighteen years old but the examination of his genitalia suggested someone only fourteen years of age.⁵⁴⁵

Similar problems arise with the collection of forensic evidence in cases of mass exhumations and mass autopsies. In general, forensic scientists are not used to dealing with such large-scale crimes, as the example of the former Yugoslavia has shown.⁵⁴⁶ There is often a long time between the commission of crimes and the commencement of the forensic investigations. In this time frame the evidence can be contaminated or deliberately faked.⁵⁴⁷ Although gathering of forensic evidence is not without difficulties, the obtained evidence is indispensable for the truth-finding process.⁵⁴⁸

3. Facts of common knowledge, adjudicated facts, and agreed facts

The legal framework of the ICC provides limited opportunity for the Court to accept unproven facts as evidence and, furthermore, takes judicial notice of some of those facts.⁵⁴⁹ There are three categories of facts concerned: (a) facts of common knowledge, (b) adjudicated facts, and (c) agreed facts.

In Fofana, the Trial Chamber of the SCSL clearly noted that Rule 94 RPE ICTY/ICTR/SCSL encompasses three different categories of facts: ‘(a) facts of common knowledge (94(A)); (b) adjudicated facts from other proceedings before the Court Page Id: 484References(p. 485) (94(B)); and (c) documentary evidence from other proceedings before the Court (94(B))’.⁵⁵⁰ Art. 69 (6) ICCSt does not contain such a categorization of facts and, therefore, the applied classification for the following analysis differs from the one proposed in the jurisdiction of the ad hoc Tribunals.

In any case, the Court only accepts facts which do not deal with the acts, conduct, or mental state of the accused because of their considerable impact on the rights of the accused, even if the defence has the opportunity to challenge all proposed facts. Furthermore, it is prohibited to take judicial notice of facts related to the accused; this approach is founded in the right of the accused to confront and examine incriminating evidence.⁵⁵¹ The ad hoc Tribunals have established a stringent approach, that is, the defence has no right to challenge a fact which is taken as judicially noticed and, therefore, ‘cannot be the subject of further evidence or dispute in the trial.’⁵⁵²

a. Facts of common knowledge

According to Art. 69 (6) ICCSt, facts of common knowledge do not have to be proven by the submitting party and the Court may take judicial notice of them.⁵⁵³ Until now, the Court has not taken judicial notice of any fact of common knowledge and, therefore, the phrase ‘facts of common knowledge’ is not determined regarding the ICC. The reason behind this provision is to reduce the length of trials by avoiding proof for notorious facts which are part of general knowledge.⁵⁵⁴ In Katanga and Chui, the Trial Chamber explicitly addressed this topic to prosecution and defence before commencing the trial by questioning if any of the parties Page Id: 485References(p. 486) wanted the Court to take judicial notice, according to Art. 69 (6) ICCSt, of any fact submitted as evidence.⁵⁵⁵

In Karemera et al., the Trial Chamber of the ICTR established a definition for the term ‘common knowledge’. According to this, ‘the notion encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.’⁵⁵⁶

During negotiations for the establishment of the ICC the delegation of the USA argued that the wording of Rule 94 RPE ICTY was not clear enough concerning the meaning of ‘facts of common knowledge’ and, therefore, they provided a more precise definition to be included in the Rules of Procedure and Evidence of the ICC. ‘For example, “facts of common knowledge” can refer not only to well known geographical, temporal, or other phenomena, but also to scientific facts capable of being easily verified, or populations patterns and other social and economic data.’⁵⁵⁷

Until now, there has been no explicit rule dealing with this issue in the Rules of Procedure and Evidence. In its internal expert report, the OTP concluded that the concept of the term ‘facts of common knowledge’ should be broadened to facilitate the Court to take judicial notice also of facts such as the nature of the conflict or the existence of an armed conflict.⁵⁵⁸ The proposals by the USA during negotiations for the establishment of the ICC went even further and opined that the Court should also take judicial notice of ‘various regulations of domestic or international law’.⁵⁵⁹ One has to bear in mind that the onus of proof shifts from the Prosecutor to the accused and, hence, in particular in criminal proceedings, the issue of judicial notice should be approached carefully. The rights of the accused are largely based on the principle of the presumption of innocence, that is, the prosecution must prove the guilt of an accused and not vice versa, pursuant to Art. 66 ICCSt.⁵⁶⁰ This could easily lead to a violation of the fundamental rights of the accused when persisting in the extension of the application of the term ‘judicial notice’.Page Id: 486References(p. 487)

The ad hoc Tribunals have ruled that taking judicial notice of facts of common knowledge is not at the Court’s discretion. Because of the ‘specific, mandatory language of Rule 94 (A) … the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.’⁵⁶¹ In the same decision the Appeals Chamber recognized genocide as a fact of common knowledge arguing that ‘[t]here is no reasonable basis for anyone to dispute that’.⁵⁶² The application of judicial notice in this form jeopardizes the rights of the accused. Furthermore, the term ‘genocide’ is a legal characterization and, hence, inadequate to be judicially noticed. For this reason, the Appeals Chamber noted in Norman et al. ‘that legal conclusions as well as facts which constitute legal findings cannot be judicially noticed’.⁵⁶³ It might have been better to acknowledge the circumstances of the events in Rwanda in 1994 than to recognize the term ‘genocide’ as a fact of common knowledge.⁵⁶⁴

b. Adjudicated facts

Neither the Rome Statute nor the Rules of Procedure and Evidence contain a provision regarding adjudicated facts. As a measure to enhance the effectiveness of the Court, the internal expert report of the OTP advised that the Chamber should also take judicial notice of adjudicated facts such as the nature of conflict reasoning that this would ‘counter defence attempts to delay proceedings by disputing issues that could never be reasonably in dispute’.⁵⁶⁵ Until now this issue has not been addressed to the Chamber and, therefore, no decision concerning this has been taken by the Court.⁵⁶⁶

Rule 94 (B) RPE ICTY/ICTR/SCSL explicitly deals with adjudicated facts and documentary evidence from other proceedings that might be judicially noticed by the Court after hearing the parties. The wording of the regulation is not mandatory and, therefore, its application is at the discretion of the Chamber.⁵⁶⁷ The purpose Page Id: 487References(p. 488) behind taking judicial notice of adjudicated facts is to serve judicial economy.⁵⁶⁸ Notably, the Chamber can take judicial notice due to a motion by the Prosecutor or the defence but also proprio motu.⁵⁶⁹

In Popovic et al., the Trial Chamber developed the criteria required for adjudicated facts to be judicially noticed. First, adjudicated facts must be relevant for the current proceedings. The facts must be distinct, concrete, and identifiable, and furthermore should not be altered by the submitting party but, rather, be formulated in the same way as in the original judgment. Moreover, the facts should not be used in a misleading or unclear manner. In addition, the applicant party should not request judicial notice of an entire judgment but rather should determine the exact paragraphs concerned. Further, the facts must not contain characterizations of an essential legal nature⁵⁷⁰ and must not be based on an agreement between the parties to the original proceedings.⁵⁷¹ Moreover, the facts must not be related to the acts, mental state, or conduct of the accused and they must not be subject to pending appeal or review.⁵⁷²

c. Agreed facts

The last category of facts which can be submitted as evidence without being proven is based on an agreement between the Prosecutor, the defence, and the legal representative of the victims. According to Rule 69 RPE ICC, they can agree on facts contained in the charges, on the content of a document, on the expected testimony of a witness, or on a joint selected expert. The Court cannot take judicial notice of the agreed facts but rather can simply accept them. The outcome of the agreement will be introduced during the status conference before the Trial Chamber, according to Regulation 54 Page Id: 488References(p. 489) RegC. Notably, the Trial Chamber has the opportunity to dismiss the agreed facts, reasoning that this would not be in the interests of justice, in particular in the interests of the victims. In Katanga and Chui, the prosecutor, the defence, and the legal representatives of the victims reached an agreement on seven of 149 proposed facts.⁵⁷³

Under Rule 65ter (H) RPE ICTY, it is in the power of the Pre-Trial Judge to accept agreed facts but it is still possible at the trial stage to agree facts. In that case, the court order regarding the agreed facts will be issued by the Trial Chamber which can exercise the function of the Pre-Trial Judge.⁵⁷⁴

According to Art. 21 IMTSt, the Tribunal shall not require proof for facts of common knowledge. Moreover, ‘[i]t shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committee set up in the various Allied countries for the investigation of war crimes, and the records and findings of military or other Tribunals of any of the United Nations’.

The extent of the opportunity to take judicial notice is clearly broader than provided for in the Rome Statute or the Statutes of the ad hoc Tribunals. Again, this imposes an unacceptable burden on the defence and contradicts the principle of the presumption of innocence.

II. Admissibility of evidence

Pursuant to Art. 64 (9) (a) ICCSt, the Trial Chamber has the power to rule on the admissibility or relevance of evidence. Effectively the same wording with more detail can be found in Art. 69 (4) ICCSt, namely with reference to the probative value of evidence and the prejudicial impact of the admission of evidence on the rights of the accused, enshrined in Art. 67 ICCSt.

Under Rule 89 (C) RPE ICTY/ICTR, the Chamber has the power to evaluate any evidence regarding its relevance and its probative value. Remarkably, Rule 89 (C) RPE SCSL is differently formulated, that is, the Chamber may only determine the relevance or irrelevance of a single item tendered in evidence.⁵⁷⁵ Thus it is obvious that the ICTY as well as the ICTR have established a twofold test to ascertain admissibility. In Delalic et al., the Chamber pointed out that the wording of the Rules of Procedure and Evidence only support the conclusion that the Trial Chambers of the ICTY should decide on this issue ‘in favour of admissibility of evidence as long as the evidence is relevant and is deemed to have probative value Page Id: 489References(p. 490) (Sub-rule 89 (C)), and its probative value is not substantially outweighed by the need to ensure a fair trial (Sub-rule 89 (D)).’⁵⁷⁶

The ICTR had to deal repeatedly with facts of pre-1994 events; that is, events from outside the temporal jurisdiction of the Court. In Gatete, the Chamber clearly pointed out that the admission of such evidence is not prohibited per se but must fulfil certain requirements to be rendered admissible. Hence, such evidence has to be aimed at:

(i) clarifying a given context, such as providing historical context or background;

(ii) establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994;

(iii) demonstrating a deliberate pattern of conduct.⁵⁷⁷

The Trial Chamber in Lubanga developed a threefold test which the Court had to consider by examining the admissibility or inadmissibility of evidence ‘other than oral evidence’.⁵⁷⁸ Firstly, the Court had to determine if the evidence tendered was prima facie relevant to the specific case,⁵⁷⁹ and secondly, the Chamber had to evaluate if that evidence had prima facie probative value.⁵⁸⁰ Finally, ‘the Chamber must, where relevant, weigh the probative value of the evidence against its prejudicial effect’.⁵⁸¹ The criteria mentioned demonstrate the general requirements for the admissibility of evidence. Moreover, even if the wording of the law indicates that either relevance or admissibility must exist, it is obvious that relevance is part of admissibility, pursuant to the jurisdiction of the ICC and, therefore, has to coexist in addition to the other requirements of admissibility; that is, the probative value and the balance between the effectiveness of proceedings and the potential prejudice caused by particular evidence to a fair trial.

A Trial Chamber of the ICTY ruled that there are basic differences between the ‘legal admissibility of documentary evidence and the weigh that documentary evidence is given in the courtroom.’⁵⁸²Page Id: 490References(p. 491)

1. General requirements

In Lubanga the Court clearly noted that ‘the Chamber has [been] given a wide discretion to rule on admissibility or relevance and to assess any evidence, subject to the specified issues of “fairness”’,⁵⁸³ according to Rule 63 (2) RPE ICC. Notably, this discretion is not unlimited; that is, the Chamber cannot render evidence admissible without evaluating it item by item or by substantiating its finding, pursuant to Rule 64 (2) RPE ICC. In Bemba, the Appeals Chamber reversed the decision of the Trial Chamber⁵⁸⁴ on that account, reasoning that it ‘acted outside the legal framework of the Court.’⁵⁸⁵ Judge Ozaki went even further in her dissenting opinion to the reversed decision by arguing that the Trial Chamber applied the concept of prima facie admissibility which in her opinion ‘does not exist in the Rome Statute (“Statute”) or in the Rules of Procedure and Evidence (“Rules”).’⁵⁸⁶ Moreover, she argued that the Chamber creates an ‘intermediate stage’ when ruling on admissibility which is not foreseen in the legal framework of the ICC.⁵⁸⁷ The Chamber should not create a prima facie stage for all evidence without evaluating every single item. Such an approach seriously violates the rights of the accused because of the immense burden which would be imposed on the defence. Therefore, the Chamber should not automatically admit or exclude evidence without proper examination.⁵⁸⁸

The Chambers of the ICTY prefer to render evidence admissible than to decline its admission.⁵⁸⁹ That notwithstanding, if an item is rendered irrelevant it must be excluded beyond all question ‘in the interest of a fair and expeditious trial.’⁵⁹⁰ That implies that evidence will not be admitted into evidence without examining its relevance, probative value, and prejudice. Furthermore, the Court has also had Page Id: 491References(p. 492) the opportunity to decide on this issue proprio motu if it appeared appropriate.⁵⁹¹ Furthermore, the Court clearly pointed out that decisions on admissibility are reversible at a later stage of the proceedings.⁵⁹² This also includes the opportunity for the parties involved in the trial to seek the admission of the rejected item at a later stage ‘if it is considered to fulfil the requirements of Rule 89 that it be relevant, of probative value, and bear sufficient indicia of authenticity.’⁵⁹³

Pursuant to Rule 64 (1) RPE ICC, the admissibility of evidence may be challenged at the time the item is submitted into evidence. Only if the reason for challenging becomes known thereafter, may the party concerned put forward their arguments against the admissibility of evidence. Notably, the Court in Lubanga rightly stated that ‘[i]f a challenge is made to the admissibility of evidence, it appears logical that the burden rests with the party seeking to introduce the evidence.’⁵⁹⁴ Generally, the presenting party has more information on the origin of the evidence and, of course, of the credibility and reliability of the source than does the challenging party.

The ICC has adopted the same approach as the ICTY regarding the burden of proof. Thus, the requesting party must prove the relevance and probative value of the tendered evidence. In its guidelines on evidence the Trial Chambers pointed out that there are differences between the prosecution and the defence. While the defence only has to prove the admissibility of its evidence on ‘a balance of probabilities’⁵⁹⁵ the Prosecutor must prove the relevance, probative value, and reliability of its evidence ‘beyond reasonable doubt’.⁵⁹⁶

a. Relevance

As mentioned earlier, relevance and admissibility are two different concepts.⁵⁹⁷ According to Art. 69 (4) ICCSt, the Chamber may examine the ‘relevance or admissibility’ of evidence submitted. That implies that the legal framework of the ICC foresees a two-part evaluation carried out by the Chamber at any stage of the process. However, the decisions already made by the Court suggest that it combines the two concepts into one comprehensive approach.⁵⁹⁸ In Katanga and Chui, Page Id: 492References(p. 493) the Chamber determined that ‘relevance is a legal precondition to admissibility’⁵⁹⁹ because relevance means that ‘the evidence tendered makes the existence of a fact at issue more or less probable.’⁶⁰⁰ Hence, the affirmation of relevance is a logical requirement needed before the Court can deal with the prerequisites of admissibility.

The ICTR follows the same conclusion; that is, evidence is relevant if ‘there is connection between the evidence and one or more allegations against the accused charged in the indictment.’⁶⁰¹

The threshold for relevance is rather low; an item submitted to evidence is irrelevant, only if there is no reasonable link between the evidence and the allegation against the accused. Furthermore, the Chamber in Katanga and Chui defined two purposes for evaluating the relevance of evidence. These were the exclusion of irrelevant evidence and the determination of the proposition of why exactly that item was admitted into evidence.⁶⁰²

The ICTY has adopted a rather similar approach concerning the threshold of admissibility; that is, it ‘should not be set excessively high’;⁶⁰³ the same approach is generally applied by the Chambers of the ICTR.⁶⁰⁴

b. Probative value

Evaluating the probative value of evidence, the Chamber must assess reliability and significance, defined in Bemba as the ‘weight to be attached to the evidence concerned’,⁶⁰⁵ of a single item on a case-by-case basis. If the tendered evidence is authenticated, it is reliable. In Katanga and Chui, the Chamber rightly noted that a confining list of criteria does not exist. There exist only several key factors which depend on the source, the nature, and characteristic of the item of evidence, on its contemporaneousness, on its purpose, and on the independent verification and test of the evidence gathering proceedings.⁶⁰⁶ First, documentary evidence has to be evaluated according to this scheme. Regarding written statements of witnesses, the Chamber in Lubanga referred to Page Id: 493References(p. 494) the criteria developed by the ICTY. According to this, an item is deemed to be reliable if it is ‘voluntary, truthfully and trustworthy, as appropriate.’⁶⁰⁷

According to Rule 89 (E) RPE ICTY/ICTR, the ‘Chamber may request verification of the authenticity of evidence’. The Trial Chamber of the ICTY noted that if there are sufficient indicia of reliability, the item will be rendered admissible. However, the authenticity and the proof of authorship will be weighed at the end of the proceedings when the Court finally has to pronounce on the probative value of every item admitted into evidence.⁶⁰⁸

In Delalic et al., the Chamber went even further by defining reliability as ‘the invisible golden thread which runs through all the components of admissibility.’⁶⁰⁹

The second criterion is the significance of a specific item to increase the outcome of the investigation of the Court. The evidence may significantly help the Court in two ways. Firstly, it may be helpful by influencing the truth-finding process of the Chamber and, secondly, it may help to prove the reliability of other evidence in the same case.⁶¹⁰

The probative value of evidence must be separated from the evidentiary value. The former is one of the key factors when determining the admissibility of evidence, while the latter describes the importance of a single item to prove a certain issue. Both have to be evaluated by the Chamber at the end of the trial based on the overall picture which arises from all admitted evidence.⁶¹¹

A finding by the Chamber that the tendered evidence is relevant and possesses probative value does not mean that it is automatically admissible until the ‘weighing [of] the potential probative value of the evidence against the possible prejudice effect’⁶¹² has been undertaken.

c. Prejudice

As the Trial Chamber rightly determined in Lubanga, any submitted incriminating evidence is at the same time prejudicial to the accused and Page Id: 494References(p. 495) therefore the Chamber has to carry out its evaluation carefully.⁶¹³ In Katanga and Chui the Chamber posed two questions in order to determine the purpose of examining the prejudice of evidence. First, what caused the prejudice, and secondly, what right of the accused or of someone else would be violated by the admission of the evidence.⁶¹⁴ The first question can only be answered on a case-by-case basis because of the infinite opportunities to prejudice the rights of the accused. It depends on ‘specific characteristics of the item of evidence and the nature of the alleged prejudice’.⁶¹⁵ The answer to the second question can be found in the wording of Art. 69 (4) ICCSt, that is, the potential impact on a fair trial and on the fair evaluation of the testimony of a witness, enshrined in Art. 67 ICCSt.⁶¹⁶

In the Chambers of the ICTY, it is general practice not to apply the common law approach regarding the exclusion of evidence. The reasoning therefore is situated in what was called the ‘judging element’.⁶¹⁷ Generally in common law systems, evidence will be presented to a jury and the lay juror should be removed from the influence of prejudicial evidence. In international courts the finding will be rendered by professional judges who are trained and qualified to deal with evidence which is perhaps excluded later in the proceedings.⁶¹⁸

Pursuant to Rule 89 (D) RPE ICTY, the Court has to balance the probative value of a certain item and the rights of the accused to a fair trial. If it comes to the conclusion that the probative value does not justify the restriction of the rights of the accused, it may exclude the evidence. Neither the Rules of Procedure and Evidence of the ICTR nor the SCSL comprise such a limitation.

2. Hearsay

There are two different kinds of hearsay evidence. The first are hearsay testimonies; that is, a witness who testifies in court provides information about the experiences of another person, for example for protection reasons. The problem here is that the Chamber must be satisfied not only with the reliability of the witness who testifies but also the source of origin must provide sufficient indicia of reliability to convince the Court. The second form of hearsay evidence is the Page Id: 495References(p. 496) written statement⁶¹⁹ of a witness who is not going to testify before the Court. Arguments for the absence of live testimony might be a deceased or disappeared witness but also a witness who has testified before the Court on the same issue but in another case.⁶²⁰

In procedural law, common and civil law rule differently on the admissibility of hearsay evidence. After World War II, the then established courts acting in Nuremberg and Tokyo implemented the opportunity to submit hearsay into evidence.⁶²¹ In the inquisitorial system of civil law, hearsay evidence is prima facie admissible, whereas in the adversarial system of the common law, this kind of evidence is per se inadmissible, with limited exceptions.⁶²² The reason behind this ruling in common law is to protect jurors from the impact of information from an unreliable source.⁶²³ At the ICC, professional judges who are trained and experienced in handling the different values of evidence have to decide this issue and, hence, the negative impact should be slight. The traditional hearsay rule provides ‘that no assertion offered as testimony can be received unless it is or has been open to test by cross-examination or an opportunity for cross-examination’.⁶²⁴

In English law, section 114 of the Criminal Justice Act 2003 defines hearsay as

a statement not made in oral evidence in the proceedings but clearly stated that it is admissible only if

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 [eg public information or res gestae] makes it admissible,

(d) the court is satisfied that it is in the interests of justice for it to be admissible.⁶²⁵

(p. 497) In civil law systems the admissibility of hearsay evidence is not undisputed. In Germany, in cases where, for example, organized criminal groups are involved, undercover agents are exempted from testifying personally in court but the person who questioned them at the investigation stage introduces their statement as hearsay evidence.⁶²⁶ This is permitted only as a last resort because of its negative impact on the rights of the accused.

The ECtHR has implemented an approach closer to common law; that is, generally, hearsay evidence is inadmissible with few exceptions because it puts the right of the accused to examine the prosecution witness as well as the witness testifying on his/her behalf enshrined in Art. 6 (3) (d) ECHR in jeopardy.⁶²⁷ To compensate for the restriction of the rights of the accused, the Court has to examine the process in three steps, according to ECtHR case law.⁶²⁸

First, the Court has to determine the reasons for restricting the defence right to confront the witness for the prosecution. In Doorson, the ECtHR affirmed the decision of the Amsterdam Court of Appeal not to disclose the identity of witnesses who feared reprisals from the applicant, reasoning that ‘drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them’.⁶²⁹ Therefore, in order to obtain evidence from witnesses whose right of life, liberty, or security enshrined in Art. 8 ECHR is endangered, the limitation of the defence rights does not affect the admissibility of evidence.

Secondly, there is no violation of the right to confront the witness ‘if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the juridical authorities’.⁶³⁰ The procedure sufficiently compensates the restrictions if, for example, defence counsel is present when the witness is questioned and has the opportunity to pose questions.⁶³¹

As a final step, the hearsay evidence has to be corroborated by other evidence and conviction of the accused must not be based on hearsay alone.⁶³² Of course, this must not go so far that the accused would also have been convicted if the hearsay Page Id: 497References(p. 498) evidence was not admissible in terms of the principle conditio sine qua non, as such a procedure would be similar to the exclusion of evidence.⁶³³

However, the ICC has adopted the civil law approach on hearsay evidence. This becomes clear by the wording of Art. 69 (4) ICCSt, where the Chamber has the power to rule on the relevance or admissibility of any evidence. Therefore, under certain circumstances hearsay evidence is also admissible even if the Court prefers live testimony. In Lubanga, the Chamber referred on this issue to the findings of the ICTY and, thus, implemented the criteria listed in Aleksovski.⁶³⁴

Pursuant to the above-mentioned ruling of the Appeals Chamber of the ICTY, ‘the probative value of a hearsay statement will depend upon the context and character of the evidence in question’.⁶³⁵ In Kordic and Cerkez, the Chamber specified the criteria which have to be taken into account by analysing the evidence tendered: (1) if the statement was given under oath, (2) if it was subject to cross-examination, (3) if it was corroborated by other evidence, (4) if it was ‘first hand’ or more removed, and (5) if the statement originated contemporaneously with the events or was produced years later.⁶³⁶

Furthermore, the Chamber clearly pointed out in Aleksovski that even if hearsay evidence is rendered admissible, its evidentiary value will always be lower than the weight of oral testimony in court.⁶³⁷ As a consequence, it becomes clear that, in principle, hearsay evidence is admissible in proceedings before the ICTY, moreover the Appeals Chamber when affirming the decision, assessed that this ‘is well settled practice of the Tribunal’.⁶³⁸ Until now, the Chambers of the ICTR have applied the same requirements for hearsay evidence as those developed by the ICTY.⁶³⁹Page Id: 498References(p. 499)

Submitting such evidence into the proceedings puts the right of the accused to confront his or her accuser, enshrined in Art. 67 (1) (e) ICCSt, in jeopardy and, therefore, the Court has to deal with this with the utmost caution. The prerequisites listed in Aleksovski are crucial when analysing hearsay evidence regarding both the ICC as well as the ICTY, in particular the requirement that the statement was ‘voluntary, truthful and trustworthy’.⁶⁴⁰ Examining the requirements for rendering hearsay evidence admissible, the Chamber should always bear in mind that the legal framework of the ICC is based on the principle of primacy of oral testimony, enshrined in Art. 69 (2) ICCSt.⁶⁴¹ In Bemba, Judge Ozaki rightly stated that ‘[t]he reading of a witness statement can never be a substitute to such observations [as the demeanour of a witness] and live evaluations.’⁶⁴²

3. Exclusionary rule Art. 69 (7) ICCSt

If the exclusionary rule seems to be mandatory at first sight, evidence which is obtained by infringing international human rights law or the provisions of the Statute of the ICC is not inadmissible per se. Exclusion of evidence is restricted to compliance with one of the two requirements listed in Art. 69 (7) (a) and (b) ICCSt, that is, only if ‘the violation casts substantial doubt on the reliability of the evidence, or’ if ‘the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings’ should evidence be excluded.

In mind that in most national legal frameworks there is a legal guarantee that only lawfully obtained evidence can be used by the prosecution against an accused.⁶⁴³ This restricts the ways and means of how the investigating officers can obtain evidence for later use at trial.⁶⁴⁴ Hence, the process of collecting evidence must satisfy a minimum standard which allows the conduct of a fair trial regarding the reliability of obtained evidence and its prejudicial impact on the process as a whole.

The Chamber may exclude evidence which is obtained by violating the Statute of the ICC or of internationally recognized human rights, according to Art. 69 (7) Page Id: 499References(p. 500) ICCSt. The violation of the Rules of Procedure and Evidence is not encompassed and, therefore, cannot trigger the exclusion of evidence. In its decisions on this issue, the Chambers referred inter alia to the ECHR and in particular, to the findings of the ad hoc Tribunals.⁶⁴⁵

Art. 6 ECHR enshrines the rights of the accused to a fair trial but does not explicitly deal with the issue of excluding evidence, for example, obtained by torture or by an unlawful seizure of the property of the suspect. Art. 3 ECHR prohibits the use of torture, inhuman, or degrading treatment and punishment. Thus, this conduct must not be carried out against the suspect or any potential witness in order to obtain information and, if it occurs, the evidence thus obtained must be excluded. With certain additions, very similar wording can be found in Art. 5 African Charter on Human Rights, in Art. 7 ICCPR, and in Art. 5 (2) Inter-American Convention on Human Rights. Furthermore, the ECHR provides in Art. 8 the right of everyone ‘to respect for his private and family live, his home and his correspondence’. This right is likewise enshrined in Art. 17 ICCPR and Art. 11 Inter-American Convention on Human Rights. This leads to the conclusion that evidence obtained by an unlawful seizure of property of a suspect violates internationally recognized human rights law and, therefore, may be excluded. According to Art. 8 (2) ECHR, this right can be lawfully restricted and is not therefore absolute, and thus the violation of the right enshrined in Art. 8 (1) ECHR must be disproportionate.⁶⁴⁶

The legal framework of the ad hoc Tribunals provides for, in Rule 95 RPE ICTY/ICTR, the exclusion of evidence under rather similar requirements to those provided in Art. 69 (7) ICCSt. Evidence which is obtained by coercion or other conduct which leads to an infringement of the freedom of choice of a witness or the accused cannot be used as evidence at trial. Rule 95 RPE SCSL is not formulated in such a clear manner; it only provides that any evidence shall be inadmissible if its ‘admission would bring the administration of justice into disrepute’.

In Delalic et al., the Chamber pointed out that if a statement was made voluntarily, the burden of proof ‘is on the Prosecutor’.⁶⁴⁷ Furthermore, ‘the Trial Chamber is the guardian of the procedural and substantive rights of the Accused’.⁶⁴⁸ However, regarding irregular seizure of the home of an accused, the Court decided that Page Id: 500References(p. 501) ‘minor breaches of procedural rules’⁶⁴⁹ cannot lead to the exclusion of evidence because such an approach would not be in the interest of justice.⁶⁵⁰ Furthermore in Brdanin, the Chamber pointed out that in examining if evidence should be excluded, it must weigh the gravity of the charges brought against the accused and the alleged violation of the law.⁶⁵¹

Art. 67 ICCSt constitutes lex specialis to the general requirements of admissibility, in particular regarding potential prejudice to the rights of the accused. Moreover, the Chamber stated in Lubanga that the exclusionary rule ‘represents a clear exception to the general approach’,⁶⁵² and therefore, ‘it is impermissible to introduce this further factor, namely adding the probative value of the evidence as a criterion of admissibility’.⁶⁵³ However, it becomes clear that the Chamber does not take the same line in interpreting the general prerequisites of admissibility.⁶⁵⁴ In Bemba, the Trial Chamber noted that the only difference between the provisions in Art. 69 (4) ICCSt and Art. 69 (7) ICCSt is that the ‘latter provision … is the only situation in which the Chamber has a duty to make a ruling on admissibility’.⁶⁵⁵ This finding does not conform with Rule 63 (3) RPE ICC; that is, that the Chamber ‘shall rule’ on challenges on admissibility concerning the exclusionary rule, pursuant to Art. 69 (7) ICCSt.

Until now, the Court has had to deal with two cases on the exclusion of evidence, according to Art. 69 (7) ICCSt. In Lubanga, the Trial Chamber had to decide on the admissibility of evidence obtained by an unlawful seizure which infringed the right to privacy of another person than the accused.⁶⁵⁶ The question of whether a violation occurred does not depend on the person whose rights were infringed but how far the interference affects the right to a fair trial as a whole.⁶⁵⁷ According to the Chamber, the search was disproportionate because Page Id: 501References(p. 502) the authorities seized many documents unrelated to the criminal offence against the alleged suspect. This finding will not be sufficient to exclude the evidence concerned due to the fact that the Court must be satisfied that one of the options determined in Art. 69 (7) (a) or (b) ICCSt is met.

The Pre-Trial Chamber noted in its decision on the confirmation of charges that the reliability of evidence, enshrined in Art. 69 (7) (a) ICCSt, was not affected by the unlawful seizure, and the Trial Chamber affirmed this reasoning.⁶⁵⁸ Hence the second option had to be examined. A wide range of concerns must be balanced to justify the exclusion of evidence, pursuant to Art. 69 (7) (b) ICCSt, because the seriousness of the crimes for which the Court is authorized to render justice does not permit exclusion of evidence solely to discipline the Prosecutor or national investigating officers.⁶⁵⁹ In this particular case, the Chamber concluded that the violation: (1) did not amount to a serious infringement of the fair trial standards; (2) did not directly violate the rights of the accused but instead the rights of a third person; and (3) was carried out by Congolese authorities and not by a member of the OTP.⁶⁶⁰ In conclusion, the Court stated that the admission into evidence of the seized items did not ‘seriously damage the integrity of the proceedings’, albeit the precondition, that is, the violation of a fundamental international recognized human right, was satisfied.⁶⁶¹

The second case in which the Trial Chamber had to deal with the exclusionary rule enshrined in Art. 69 (7) ICCSt was Katanga and Chui. The appellant filed a motion against the admission into evidence of his prior statement made during interrogation by the national authorities of the military court in Kinshasa on 20 January 2006. The defence argued that the presence of counsel during the questioning was denied, albeit the accused requested the assistance of his defence counsel.⁶⁶² Notably, the Trial Chamber based its finding on the following internationally recognized human rights law regarding the right to be assisted by a lawyer of choice.

This right is stipulated in Art. 6 (c) ECHR, Art. 7 (c) African Charter on Human Rights, and Art. 8 (2) (d) Inter-American Convention on Human Rights. The ECtHR has clearly stated that the right to be assisted by counsel can be restricted ‘for good cause’.⁶⁶³ The permission to restrict this right must be examined on Page Id: 502References(p. 503) a case-by-case basis ‘in the light of the entirety of the proceedings’.⁶⁶⁴ Due to the long period during which the suspect was denied access to his lawyer, the self-incriminating statements made by the suspect at the time, and their crucial role for his conviction, the Court concluded that Art. 6 (3) (c) ECHR had been breached.⁶⁶⁵

In Delalic et al., the Court argued that if the national legal framework does not provide the right to be counselled, the Court is not bound by those provisions, pursuant to Rule 89 (A) RPE ICTY and, therefore, evidence obtained by breaching the law of the Court must be excluded as evidence. The Chamber argued that ‘the Austrian rights of the suspect are so fundamentally different from the rights under the International Tribunal’s Statute and Rules as to render the statement made under it inadmissible’.⁶⁶⁶

Referring to the findings of the ECtHR, the Chamber argued that the ECHR requires only that the suspect is granted access to his lawyer, and therefore defence counsel need not be present during questioning to protect the rights of the accused. Nevertheless, the Chamber came to the conclusion that the rights of the accused were violated because of the lack of adequate legal advice before interrogation, and hence the prior statement could not be admitted into evidence.⁶⁶⁷ The Chamber did not conclusively determine which option given in Art. 69 (7) ICCSt was satisfied, but it can be assumed that the absence of a lawyer, at the pre-trial stage, puts the integrity of the proceeding in jeopardy by causing irretrievable prejudice to the rights of the accused.⁶⁶⁸

Of particular concern is the order of the Co-Investigating Judges of the ECCC on the admission into evidence of statements obtained by torture or potentially obtained by torture. Notably, in the legal framework of the ECCC no regulation similar to the exclusionary rule, enshrined in Art. 69 (7) ICCSt, exists. Rule 21 (3) RPE ECCC only provides for a regulation regarding the inadmissibility of statements obtained by the use of ‘inducement, coercion or threats’ when conducted by officials of the ECCC. The Judges argued that this provision was not applicable to evidence obtained by torture conducted by members of the Communist Party of Kampuchea.⁶⁶⁹ Pursuant to Rule 87 (3) (d) RPE ECCC, the Chamber can refuse Page Id: 503References(p. 504) the admission of evidence which is ‘not allowed under the law’, that is, under the national law as well as under all law enshrined in international treaties signed and ratified by Cambodia. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) is one of the international contracts which the Court has to take into account in deciding on the admissibility of evidence.

In requesting the exclusion of the evidence concerned, the defence argued that statements made under torture could only be used against direct perpetrators and then only in cases where it would be used as proof that torture was committed, according to the wording of Art. 15 CAT.⁶⁷⁰ Furthermore, the defence noted that statements made under torture are not reliable, and therefore cannot be used as evidence for the truth of their content.⁶⁷¹ Deciding on the defence request, the Co-Investigating Judges pointed out that a restrictive interpretation of Art. 15 CAT would ‘allow those who are accused of torture to use the law designed to prevent torture to shield themselves from liability’,⁶⁷² because the above-mentioned provision had to be read in the light of Art. 31 (3) (b) of the Vienna Convention on the Law of Treaties, that is, every treaty has to be interpreted ‘in good faith’. According to the order, statements made under torture can be submitted into evidence to prove that, for example, a person whose name was given as a result of torture, was subsequently detained and was also subject to torture.⁶⁷³ The Judges dismissed the request by the defence.

Another issue in this regard is the admissibility of statements obtained by torture or threat of torture in order to obtain further incriminating evidence, for example the precise position of the body of a murder victim.⁶⁷⁴ In Germany in the course of criminal investigations regarding an abducted child, a deputy chief of police ordered his subordinate to threaten the suspect with torture and, if necessary, if the person concerned did not disclose the whereabouts of the child, to carry this Page Id: 504References(p. 505) out. As a consequence, the suspect disclosed the whereabouts of the child and one day later confessed to the killing.⁶⁷⁵ The Frankfurt am Main Regional Court noted that the treatment was a prohibited method of interrogation, pursuant to § 136a German Code of Criminal Procedure, and thus all statements made by the accused, even when not made under threat, were inadmissible. The exclusion of evidence comprised all further statements by the suspect in view of the continuing effect of the torture (Fortwirkung), caused by the lack of ‘qualified instruction’ (qualifizierte Belehrung). This effect could have been avoided by explaining to the suspect that his prior statements were obtained illegally and, therefore, were inadmissible.⁶⁷⁶

However, the Court rejected the exclusion of all evidence obtained as a consequence of the statements (Fernwirkung), for example the body of the child.⁶⁷⁷ The ‘fruit of the poisonous tree’ doctrine implies that all evidence obtained as a result of using illegal methods of investigation are excluded as evidence. The exclusionary rule restricts not only the confession made under threat or coercion but also all evidence as a result thereof. The US Supreme Court pointed out that:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained by an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.⁶⁷⁸

The decision of the German court is not undisputed,⁶⁷⁹ because of the perils associated with the refusal to apply the ‘fruit of the poisonous tree’ doctrine. The ECtHR affirmed that a breach of Art. 3 ECHR had occured but it could not approve a violation of Art. 6 (1) and (3) ECHR, that is, an infringement of the fair trial standards. The national court compensated for the breach of Art. 3 ECHR by excluding the statements made by the applicant.⁶⁸⁰

This approach is rather questionable because if the ‘fruit of the poisonous tree’ concept is not strictly implemented, the persons who carry out investigation are always at risk of breaching human rights law when balancing considerations of legally protected values. The deputy chief of the Frankfurt police and his subordinate were prosecuted and convicted. However, the case shows that on the one hand, the national court condemned the inhuman treatment carried out by the investigating officers, but on the other hand there was a clear lack of conse Page Id: 505References(p. 506) quences for the police officers who breached those human rights and therefore the ECtHR rightly noted that: ‘[s]uch punishment, which is manifestly disproportionate to a breach of one of the core rights of the Convention, does not have the necessary deterrent effect in order to prevent further violations of the prohibition of ill-treatment in future difficult situations.’⁶⁸¹

Using evidence obtained unlawfully, for example, by an illegal seizure or other means, irretrievably infringes the rule of law and therefore this Pandora’s Box should never be opened by any of the parties at court.⁶⁸²

III. Privileges

Commonly, the Chambers of the ICC have discretion to rule on any evidence and may also request additional evidence from the parties to the trial. This general rule is not unlimited; Art. 69 (5) ICCSt and Rule 73 RPE ICC comprise exceptions. Protecting relationships based on confidentiality from being published during the course of a public hearing, and more specifically to guard content of communications between those involved, is based on the premise that the truth should be established but not any price. This approach is recognized in most countries and is reaffirmed in the text of Art. 69 (5) ICCSt.⁶⁸³

The legal framework of the ad hoc Tribunals only provides privilege for the lawyer-client relationship. The other categories have been developed by case law.

In the following, the different categories of relationships and the extension of their protection will be discussed in detail. Inherently, the privileges are divided into testimonial and professional privileges. On no account may the former be compelled to testify at trial. In addition, protection of the latter includes communications between the parties concerned. The classification of testimonial and professional privileges will not be discussed because of many overlaps between both categories.

1. Legal counsel-client privilege

Rule 73 (1) RPE ICC enshrines protection of communication between lawyer and client. First, the meaning of the term ‘lawyer’ has to be defined. Only communications between the lawyer, that is, the attorney and the person working under his or her oversight, is protected. It is not undisputed that, for example, an investigator of the defence team falls under this definition.⁶⁸⁴ One has to Page Id: 506References(p. 507) bear in mind that the task of the investigator lies in the search for exculpatory evidence and in order to accomplish this duty he or she must have information available which is potentially incriminating for the accused. Not to extend the protection to this group of persons would lead to the circumvention of the right of protection of the confidential relationship between lawyer and client and, furthermore, to a violation of the right to equality of arms⁶⁸⁵ between the parties to the trial.

There are only two opportunities listed in Rule 73 (1) RPE ICC which would lead to the disclosure of confidential information. Firstly, the client can consent to disclosure, but this approval must be given in writing, according to Rule 73 (1) (a) RPE ICC and, secondly, the client can voluntarily disclose the confidential information to a third person. By doing so he or she waives the right to protection of his or her confidential information because the third person can voluntarily testify on his or her knowledge or can be compelled to testify on the content of the confidential information, pursuant to Rule 73 (1) (b) RPE ICC.

Rule 97 RPE ICTY/ICTR is formulated in the same manner as Rule 73 (1) ICCSt, and therefore provides the same two options for losing protection of confidential communications between lawyer and client. Rule 97 (3) RPE SCSL provides another possibility for waiving the right of non-disclosure. If the client makes allegations of ineffective assistance against his or her lawyer, all communications relevant to the case have to be disclosed. A similar provision can be found in Art. 13 (B) (iii) Code of Professional Conduct for Counsel appearing before the International Tribunal.⁶⁸⁶

Notably at the ICTY, the counsel may disclose confidential information in order to prevent a criminal act which may lead to ‘the death or substantial bodily harm of any person’. The same provision is included in the Code of Professional Conduct for Defence Counsel⁶⁸⁷ at the ICTR.

The Code of Professional Conduct for Counsel⁶⁸⁸ acting before the ICC does not enshrine such an exception. Art. 8 Code of Conduct only provides that counsel may disclose confidential information related to the lawyer-client relationship when ordered by the Court, according to Rule 76 et subs. RPE ICC concerning the issue of disclosure.(p. 508)

2. Self-incriminating testimony

Of course, the right of the accused as well as of a witness not to testify against him or herself is a testimonial privilege. The group mentioned in Rule 75 (1) RPE ICC belongs to the same category, that is, witnesses should not be compelled to testify against family members. The right of the accused and the witness not to make incriminating statements against themselves and the right of a witness not to testify against family members have already been discussed.⁶⁸⁹

3. Other confidential relationships

In examining whether a privilege other than the lawer-client privilege should be granted a specific relationship, the Chamber must consider the prerequisites enshrined in Rule 73 (2) RPE ICC. The class of relationship concerned has to satisfy a threefold test to be protected: (1) the communications made in the course of the relationship must be grounded on confidentiality and this results in expectations of privacy and non-disclosure; (2) confidentiality is an inherent part of the relationship; and (3) weighing the pros and cons of the privilege, the Chamber must determine that, for the purpose of the legal framework of the ICC, recognition of the privilege is more important than establishing the truth.

The professional relationships listed in Rule 73 (3) RPE ICC should be recognized as privileged if there are no reasons against it; that is, the Court does not have to examine in detail the relationship before declaring it confidential. The list is not conclusive and, therefore, it lays in the discretionary power of the Chamber to determine on a case-by-case basis a particular relationship as worthy of protection.

As mentioned, neither the Statutes of the ad hoc Tribunals nor their Rules of Procedure and Evidence encompass a privilege for communications between medical professionals and their patients. The now adopted approach on this issue is developed by jurisprudence, mainly from the ICTY.

Among the professional relationships listed in Rule 73 (3) RPE ICC are, of course, the relationship between a medical doctor, a psychiatrist, or a psychologist and their patients which is clearly based on confidentiality. Only this link and therefore the communications between the patient and his or her medical practitioner are protected, according to Rule 73 (2) RPE ICC.

However, Rule 73 (3) RPE ICC stipulates the right that communications of relationships ‘in particular, those related to or involving victims’ should be granted protection from being made public. Attention should be paid to the meaning of the term ‘medical doctor’ because in its literal sense it would not comprise the staff of, for example, a hospital. Therefore, it is highly recommendable to (p. 509) interpret it equally to the above-mentioned definition of the term ‘lawyer’, that is, it should encompass not only the medical doctor but rather all medical staff who are under his or her supervision and are involved in the medical care of the person concerned.

In Stanišic/Simatovic, the Trial Chamber clearly pointed out that ‘the transparent medical reporting should not unnecessarily encroach on the privacy rights of the Accused or third persons.’⁶⁹⁰ That implies that not only the relationship between victims and witnesses and their medical professionals will be protected but under certain circumstances also the relationship of the accused to his medical doctor. If the health of the accused is the reason for a violation of the right of other accused to an expeditious trial, the medical report of this accused loses its privilege.⁶⁹¹

Rather ambiguous is the term ‘counsellor’ in this regard because of its various meanings. Does the term refer only to a legal counsellor of an accused who has decided to defend him- or herself or should the notion be interpreted more broadly and also include a military counsellor or, for example, the investigator? Until now, the question has not arisen in the course of proceedings before the ICC and, therefore, a response is still awaited. A solution can, however, be found on a case-by-case basis. The Court should only interfere in any relationship of the accused or of a victim or a witness if it is in the interest of justice. Rendering its decision, the Chamber must balance with utmost caution the need for such interference with efficient prosecution and the right to privacy of the person concerned. Hence, also the relationship of a spiritual consultant should be protected.

Another professional group listed in Rule 73 (3) RPE ICC is the clergy. In particular, the Chamber should take into account that ‘communications made in the context of a sacred confession where it is an integral part of the practice of that religion’, is protected. However, the Christian religion is the only one in which sacred confession is practised and in which the clergy form an essential part of the practice of religion. A stringent interpretation of Rule 73 (3) RPE ICC would beyond doubt lead to discrimination of other religions such as Islam or Buddhism. One may ask whether, for example, the request of a witness to an Imam for a fatwa, that is, a religious judgment which can be ruled on by each Islamic judge in the world without a personal relationship between them, would be sufficiently based on confidentiality because it lacks the prerequisites of a sacred confession and is therefore not as worthy of protection as a confession in the Catholic Page Id: 509References(p. 510) religion. Until now the ICC has not had to rule on this issue but perhaps this question will arise during the trials in Libya.⁶⁹²

4. Officials of the UN

The privilege of officials of the UN is not based on the Statute or its Rules of Procedure and Evidence but rather on the Convention on the Privileges and Immunities of the United Nations⁶⁹³ (hereinafter: Convention). According to Art. V Section 18 (a) Convention, the official is privileged ‘from legal process in respect of words spoken and written and all acts performed by them in their official capacity’. That implies that the Court cannot compel any official of the UN to testify at trial. Notably, pursuant to Art. V Section 20 Convention, this privilege should only be granted to an official for the benefit of the UN and not on the basis of personal interests.

In 2004, the ICC and the UN concluded an agreement on their relationship.⁶⁹⁴ Pursuant to Art. 15 (2) Negotiated Relationship Agreement between the International Criminal Court and the United Nations (hereinafter: Agreement), the UN has the right to take all necessary measures, including non-disclosure of documents, to ensure the safety and security of its officials and their families. This provision should not be used carelessly because of its negative impact on proceedings before the ICC, as the case of Lubanga⁶⁹⁵ clearly showed. This provision combined with the safeguards enshrined in Art. 54 (3) ICCSt were used in order to restrain from disclosure of exculpatory material to the defence. Art. 16 Agreement includes the obligation for the UN to cooperate with the ICC, that is, if the Court requests the testimony of an official of the UN, it should make all efforts in order to waive the privilege.⁶⁹⁶

Also the ad hoc Tribunals has had to deal with difficulties resulting from information which was supplied by the UN based on a confidential agreement. In Brima et al., the Trial Chamber rendered a decision that a UN Human Rights officer could be compelled to give information about his sources in the course of Page Id: 510References(p. 511) his testimony at Court. Prior to that, the UN had waived parts of his immunity.⁶⁹⁷ The Court ruled that the Prosecutor could not guarantee the confidentiality of the information. Subsequently, the Appeals Chamber quashed that decision by stating that the Prosecutor has to assert the confidentiality of information and only if the Trial Chamber is not satisfied does it have the right to question the assertion. Thus, the threshold for the assertion should be very low.⁶⁹⁸

5. Privilege on non-disclosure of state security information

Generally, Member States of the Rome Statute must cooperate with officials of the Court, in particular with the Prosecutor, pursuant to Art. 86 ICCSt. However, the state may refuse to cooperate in order to protect national security information from being disclosed. Art. 72 ICCSt deals with the opportunities to find a solution between the interests of justice and the national security interests of the state concerned. According to Art. 72 (2) ICCSt, this provision also applies if a court order against a state official to appear and to testify before Court is produced. As mentioned, the Court has no power of self-assertion; that is, it cannot compel a state to comply.

In Blaskic, the Appeals Chamber affirmed the decision of Trial Chamber II regarding the concerns of Croatia that the disclosure of requested documents would prejudice its national security by quoting the following from the decision: ‘[A] State invoking a claim of national security as a basis for non-production of evidence requested by the International Tribunal, may not be exonerated from its obligation by a blanket assertion that its security is at stake. Thus, the State has the onus to prove its objection.’⁶⁹⁹

However, the Appeals Chamber pointed out that the disclosure of information which might bring the national security interests into jeopardy should not be claimed without sufficient cause. Furthermore, the Court should provide measures safeguarding the information and should order an in camera ex parte hearing.⁷⁰⁰ Hence, the ICTY clearly noted that the Court also has the power to order the Page Id: 511References(p. 512) disclosure of information against national security interests of a state by clarifying that ‘to allow national security considerations to prevent the International Tribunal from obtaining documents that might prove of decisive importance to the conduct of trials would be tantamount to undermining the very essence of the International Tribunal’s function.’⁷⁰¹

All international criminal courts deal with atrocities committed during armed conflicts and, therefore, there will always be military information which a state does not wish to have disclosed. The approach of the ICTY goes further by clearly insisting on its inherent power to order states to disclose relevant information. The only option which remains for the state concerned is to request measures in order to safeguard the information in question. The Chambers of the ICC do not have such a power and, thus, depend on the cooperation of the states.

Notably, the state concerned has to be proactive if it realizes that information which would seriously infringe national security interests is to be disclosed. If no satisfactory solution can be found, the state has to claim specific reasons for an absolute ban on the disclosure of the information concerned. The real purpose behind this provision is to enable the access of the Court to relevant information by guaranteeing sufficient safeguards for the national security interests of the state concerned.⁷⁰²

6. The ICRC

Rule 73 (4) RPE ICC expressly mentions that no document or other information related to the work of the ICRC should be disclosed, not even by testimony of present or former employees of the ICRC. Only if one of the following circumstances are met can the information be disclosed in the course of the trial: (1) the ICRC does not object to the disclosure in writing or otherwise waives its privilege, and (2) the information concerned is contained in public documents and statements of the ICRC.

If the ICRC objects to the disclosure of certain information, the parties to the trial can seek the same information from other sources, pursuant to Rule 73 (5) RPE ICC. Only if the evidence is of major importance, can the Court contact the ICRC in order to solve the problem. In the course of the negotiation with the ICRC, the Court must have regard for the interests of justice and the victims as well as to the functions of the ICRC, according to Rule 73 (6) RPE ICC.

The question of whether employees of the ICRC could be compelled to testify first emerged in the case of Simic et al. before the ICTY. The Trial Chamber argued that the neutrality and impartiality of the ICRC is based on the Geneva Convention and, therefore, all Member States have to respect the special status (p. 513) of the ICRC. Furthermore, the function of the ICRC, for example to inspect camps and detention centres, is based on confidentiality and, hence, should not be jeopardized by the Court.⁷⁰³ Concluding, the Chamber noted that ‘the right of non-disclosure of information related to the ICRC’s activities in the possession of its employees in judicial proceedings is necessary for the effective discharge by the ICRC of its mandate’.⁷⁰⁴

Remarkably in Katanga and Chui, the Trial Chamber extended the protection granted to the ICRC and noted regarding two organizations (the names of which were redacted) that: ‘[t]here is, [ … ], no specific legal basis in the Statute or the Rules which mandates the Chamber to protect the neutral image of information providers’⁷⁰⁵ but ‘the two organisations involved have a legitimate interest [ … ] that they are seen to be neutral and impartial.’⁷⁰⁶ However, ‘[t]here is a real risk that an innocent act of technical cooperation with the Court or the fact of having provided information to a third party, who subsequently transmitted it to the Court, may, rightly or wrongly, be perceived by some as an act of active collaboration with the Prosecution.’⁷⁰⁷

In contrast, a Trial Chamber of the ICTR rendered a decision that employees of national Red Cross societies are not included in the privilege granted to the ICRC, albeit cooperating with the ICRC. The reason given was that other organizations are not granted the same privilege as the ICRC because they are not mandated by the Geneva Conventions and should not subsequently be protected to such an extent as the ICRC.⁷⁰⁸

7. Journalists working in conflict zones

No privilege against having to testify or to provide information to the Court for journalists working in conflict zones is mentioned in the Statute or in its Rules of Procedure and Evidence. It remains to be seen whether the Chambers of the ICC will follow the finding of the ad hoc Tribunals on this issue.

In Brdanin, the Trial Chamber issued a subpoena against a journalist from the Washington Post because of his unwillingness to testify about an interview he Page Id: 513References(p. 514) conducted with the accused. Admittedly, the Chamber noted that the work carried out by journalists has an ‘obvious utility in effectively serving to bring to justice those responsible for crimes’.⁷⁰⁹ Nevertheless, the Court upheld its decision to compel the journalist to testify. Subsequently, the Appeals Chamber overturned the decision of the Trial Chamber. It reasoned that media personnel should only be compelled to testify in court if two requirements are met, namely that the testimony of the journalist ‘is direct and important to the core issue of the case’⁷¹⁰ and the information cannot be obtained through other sources.⁷¹¹ This decision is not undisputed because it goes further than the rationale solely to protect the confidential source or the person who facilitates the work of the journalist.⁷¹² The goal behind the refusal of the journalist mentioned earlier to appear before the Court was to force the Court to clarify the status of journalists, and to confirm their right to choose whether to testify at trial. In some national legal systems, journalists can be compelled to testify on the content of a recently published article.⁷¹³

In Taylor, the Trial Chamber of the SCSL had to deal with a request by the defence that the witness, a journalist, should disclose the identities of people who helped him to cross the border from Liberia to Sierra Leone during the conflict. In its decision, the Chamber pointed out that the term ‘source’ must be interpreted in a broad sense and, therefore, people who facilitate journalistic work during armed conflict should also be protected.⁷¹⁴

This implies that, first and foremost, one must distinguish between the information-based privilege and the professional-based privilege.⁷¹⁵ The former deals Page Id: 514References(p. 515) with the confidential relationship between the journalist and his or her sources, or between him/her and the people who facilitate his or her work as a journalist. However, the latter deals with the right to freedom of expression enshrined in Art. 19 ICCPR and Art. 10 ECHR. Journalists act as neutral observers in order to gather information and thus should be granted the right to decide if they want to testify. The privilege is not absolute and does not prohibit journalists from testifying voluntarily.

E. Witnesses and Victims Protection: A Summary (Hilde Farthofer)

The testimony of witnesses constitutes a cornerstone in trial proceedings based on the principle of oral testimony, as the Trial Chamber in Katanga and Chui clearly pointed out.⁷¹⁶ To hear even a small proportion of evidence from persons affected by a crime which in reality aggrieves an entire society necessitates a huge amount of logistical and administrational effort, in particular owing to the circumstance that the seat of the Court is spatially separated from the crime scene. The topic of witness protection and the role of victims has been addressed in several instances in the course of this book. Due to the importance of this issue, however, relevant questions regarding the protection of witnesses and victims as they appear in the context of the ICC will be presented here in summary form.

Especially in cases of large-scale crimes, the protection of witnesses and victims is important for the credibility of the Court, that is, a potential witness will not be willing to testify if he or she has heard that other witnesses have been assassinated owing to a lack of protection measures. Bearing in mind that these persons in general have no opportunity to change their whereabouts, that is, to leave the regional sphere of influence of the alleged perpetrators, special protection for witnesses and victims is needed while, at the same time, the measures taken must not violate the rights of the accused stipulated in Art. 67 ICCSt. The legal basis for the implementation of safety or protection measures is enshrined in Arts 68 (1) and 43 (6) ICCSt. The establishment of a specific protection measure will depend on the circumstance of the individual case and the reasons why the particular witness or victim has to be sheltered.

I. Reasons for protection

There are various reasons why a witness or a victim appearing before the Court has to be protected. These can be divided into three main categories: (1) the inherent Page Id: 515References(p. 516) risk of retaliatory measures, (2) the risk of new traumatization, and (3) the risk of self-incrimination.

(1) The first category refers not only to natural persons but also to organizations which are working in conflict zones and need to give the impression of neutrality to protect their own staff.⁷¹⁷ Persons who live or work in an area of ongoing armed conflict do not have the opportunity to leave the area and, therefore, are perpetually exposed to the risk of violence from both sides of the opposing parties. ‘[I]t is assumed that all persons who are known to have contacts with the ICC face a certain degree of risk.’⁷¹⁸

(2) Rule 86 RPE ICC mentions in particular victims of sexual and gender violence, children, elderly persons, and persons with disabilities. These groups have to be sheltered due to their specific vulnerability against ‘second victimization’ that questioning before the Court could cause. All parties to the trial have to be aware of their traumatized condition and have to deal with it in a sensible manner. Notably, the Victims and Witnesses Unit, a subsection of the Registry,⁷¹⁹ organizes workshops on this issue for the staff of the Office of the Prosecutor as well as for defence counsel.

(3) Witnesses need legal assistance if they run the risk of making self-incriminating statements. The Victims and Witnesses Unit has to offer support and help in finding proper legal advice in order to protect their rights, according to Rule 17 (2) (b) (i) RPE ICC.⁷²⁰

Each of these groups needs other protection measures or a variety of different measures. In the following different protection measures will be examined.

II. Protection measures

According to Art. 68 (1) ICCSt, the Court has to establish appropriate measures to safeguard the ‘safety, physical and psychological well-being, dignity and privacy’ of witnesses and victims. In principle there are two scenarios where protection is warranted: (a) inside the courtroom, and (b) outside the courtroom. The rights of the accused, which need to be protected throughout prosecution proceedings, are affected only by the first group of protection measures, namely those which have an impact on the course of proceedings.

The Registry via the Victims and Witnesses Unit is responsible for the implementation of all protection and security measures regarding witnesses and victims. One Page Id: 516References(p. 517) has to bear in mind that not only are the witnesses of the prosecution endangered due to their testimony, but defence witnesses are also faced with the same risks. However, the Victims and Witnesses Unit describes itself as ‘part of a neutral organ and does not assume that the accused (detained person) poses a threat to Office of the Prosecution witnesses’.⁷²¹

1. Inside the courtroom

The protective measures which can be ordered by the Court to be used inside the courtroom are listed in Rule 87 (3) RPE ICC and Regulation 94 RegR. The Prosecutor or the defence can request the application of such measures after they have communicated with the Victims and Witnesses Unit. In any case, a protection measure can only be imposed on a witness or victim with his or her consent and in the case of a child with the consent of the parents or the guardian.

As mentioned above, if a witness is granted certain protection measures, this implies almost automatically the restriction of the rights of the accused. In the following the different protection measures provided for in the legal framework of the ICC will be analysed with an emphasis on of the particular rights of the accused which will be placed in jeopardy.

a. Expunctions

The Court has the power to order the redaction of all information of a witness or victim which could lead to his or her identification, pursuant to Rule 87 (3) (a) RPE ICC and Regulation 94 (g) RegR. This includes, for example, the whereabouts and the names of family members of the person concerned⁷²² but could also lead to an expunction of the entire statement of the witness or victim.

If the name of the person, that is, the identity of the witness, is redacted and thus not disclosed to the defence, the right of the accused to examine a witness testifying against him or her is infringed as well as his right to prepare his case in advance. In this event, the rights of the accused have to be balanced with the rights of the witnesses or victims.⁷²³ The Appeals Chamber rightly noted in Lubanga that

three of the most important considerations for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81 (4) of the Rules of Procedure and Evidence; [are] the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would (p. 518)

Table 8.4 Witness and victims protection measures versus rights of the accused

Protection measures	Rights of the accused
Expunctions (Art. 68 (5) ICCSt and Rule 87 (3) (a) RPE ICC)	Right to examine the witness against him or her (Art. 67 (1) (e) ICCSt) and right to prepare his or her case (Art. 67 (1) (b) ICCSt)
Pseudonym (Art. 68 (5) ICCSt and Rule 87 (3) (d) RPE ICC)
Non-disclosure (Art. 68 (5) ICCSt and Rule 87 (3) (b) RPE ICC)
Testimony by technical means (eg voice distortion) (Regulation 94 (b) and (c) RegR)
Testimony by technical means (eg video conference) (Art. 68 (2) ICCSt and Rule 87 (3) (c) RPE ICC)	Right to examine the witness against him or her directly (Art. 67 (1) (e) ICCSt)
Non-public proceedings (Art. 68 (2) ICCSt and Rule 87 (3) (e) RPE ICC)	Right to a public hearing (Art. 67 (1) ICCSt)

not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.⁷²⁴

The identities of the witnesses and victims have to be disclosed to the defence shortly before the commencement of trial. The Pre-Trial Chamber has determined that disclosure of the identities of protected witnesses before the confirmation hearing is ‘an inadequate solution should the charges be confirmed because the identities of the relevant witnesses still would be disclosed a long time prior to their being called to testify at trial’.⁷²⁵ The Appeals Chamber quashed the decision stating that at least fifteen days before the confirmation hearing, the identities of the witness or victim must be disclosed to the defence. Of course, the identities of the witnesses and victims in question will never be disclosed to the public and the media if the Court so orders.

Furthermore, the application of protection measures must be proportionate and necessary. In Lubanga, the Appeals Chamber stated that:

The use of the word ‘necessary’ emphasises the importance of witness protection and the obligation of the Chamber in that respect; at the same time, it emphasises that protective measures should restrict the rights of the suspect or accused only as far as necessary.⁷²⁶

Page Id: 518References(p. 519) The principle of proportionality is not expressly stipulated in Art. 68 ICCSt nor in Rule 81 (4) RPE ICC. Nevertheless, it is encompassed in Rule 81 (4) RPE ICC by referring to the rights of the accused. The Court has to counterbalance the infringed rights of the accused and the necessity to protect the witnesses and victims. For this purpose, the Prosecutor may request the Victims and Witnesses Unit to relocate the witness or victim concerned shortly before commencement of trial. If the consent of the person concerned cannot be obtained, but the risk for the witness or victim is disproportionate, the Prosecutor cannot use his or her testimony in the prosecution case.

Remarkably, in its first decisions the Trial Chamber of the ICTY decided that the identities of protected witnesses and victims should never be disclosed to the defence, even during trial.⁷²⁷ The requirements for the derogation of recognized procedural guarantees are that

(i) there is a real fear for the safety of the witness and his or her family;
(ii) the testimony of the particular witness is of specific importance to the prosecution case;
(iii) there is no prima facie evidence that the witness is untrustworthy;
(iv) no protection programme exists or the established programme is ineffective; and
(v) the measure must be necessary, ie no less restrictive measure can protect that particular witness.

b. Pseudonym

The identification of the victim can also be protected by using a pseudonym, pursuant to Rule 87 (3) (d) RPE ICC and Regulation 94 (a) RegR. This has the advantage that the parties can question the witness or victim without the risk of accidentally using their real name.⁷²⁸

As mentioned above, non-disclosure of the identity of a witness always infringes the rights of the accused because to prepare his or her case without knowing who will testify against him or her upsets the ‘equality of arms’ principle.⁷²⁹Page Id: 519References(p. 520)

c. Non-disclosure

The Prosecutor, the defence, and all other parties to the trial can be ordered by the Court not to disclose the name or any other information which could lead to the identification of a witness or victim, pursuant to Rule 87 (3) (b) RPE ICC.⁷³⁰

Non-disclosure of the names of witnesses puts the rights of the accused in jeopardy and, therefore, the testimony has less probative value.⁷³¹ In Lubanga, the Court ordered the disclosure of the name of an intermediary, but the Prosecutor failed to comply, reasoning that he was obliged according to Art. 68 ICCSt to protect all persons affected by his investigations. This refusal caused a temporarily halt in proceedings.⁷³² The Appeals Chamber stated, regarding this issue, that ‘[t]here is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection.’⁷³³

d. Testimony by technical means

(a) The identity of a witness or a victim can also be covered by use of technical means, as for example, facial distortion (Regulation 94 (b) RegR) and voice distortion (Regulation 94 (c) RegR). Both measures will be used to shelter the witness or victim against potential retaliation. The utilization of such technical means violates the rights of the accused to examine the witness testifying against him or her, therefore the Court should only permit such measures as a means of last resort. As already mentioned, the burden on the defence to prepare the case without any information about witnesses would be immense and, of course, cannot be in the interests of justice.

(b) Technical means can also be applied to enable the testimony of vulnerable witnesses and victims to reduce the risk of secondary victimization. This includes videoconferences (Regulation 94 (f) RegR) and closed-circuit television, pursuant to Rule 87 (3) (c) RPE ICC. The purpose of this is to prevent the person concerned from testifying face-to-face with their alleged perpetrator. The protection of the rights of the victims and witnesses not to be harmed in the course of proceeding must always be respected. In particular, where children are involved, the Court should balance the rights of the most affected actors, the witnesses, victims, and the accused, with great caution.⁷³⁴

e. Non-public proceedings

The last measure which can be used in the courtroom to protect witnesses or victims is the possibility of holding the hearing in Page Id: 520References(p. 521) camera or in private session, according to Rule 87 (e) RPE ICC and Regulation 94 (d) and (e) RegR.

The accused has the right to a public hearing under Art. 67 (1) ICCSt. This right will be breached by hearings in camera or in private sessions but, it is submitted, this presents an opportunity to protect witnesses and victims which would affect the rights of the accused only minimally.⁷³⁵

2. Outside the courtroom

Protective measures should not end with the testimony of the witness or victim but rather be implemented if necessary over a longer period. The Registry has to develop a protection programme for witnesses and victims of both sides of the trial, that is, for the Prosecutor as well as for the defence, according to Regulation 96 RegR. Notably, on some occasions the Victims and Witnesses Unit has denied the application of a provisional settlement of a witness which was subsequently carried out by the Office of the Prosecutor itself.⁷³⁶ This programme includes inter alia the resettlement of the person concerned. The application of such measures depends mainly on the consent of the witness or victim concerned.

The application of such a measure will not infringe the rights of the accused because it enables the disclosure of their names and, therefore, the defence can improve its case because it knows who will testify against the accused.

III. Conclusion

The issue of protection will always be in conflict with the rights of one of the parties. If the Court grants protective measures to a prosecution witness, this would almost automatically infringe the rights of the accused. But if the Court decides that the witness or victim will not be subject to protection measures, his or her right of well-being or possibly even his or her right to life will be violated.

The Court has to balance the rights of all participants very carefully and render its decision on a case-by-case basis and not according to a general guideline. However, it must take into account the proportionality and necessity of the protective measures. Each situation brought before the Court will also require a different approach regarding the issue of witness and victim protection.(p. 522)

F. Judgment

The Presiding Judge terminates the submission of evidence. After the closing arguments of the parties and the ‘last word’ of the defence (Rule 141 RPE ICC), the Chamber retires to deliberate and come to a decision determining the accused’s guilt on the basis of the evidence, which was presented at trial. Art. 74 ICCSt uses the term ‘decision’ rather than ‘judgment’. The latter term would be the correct one used in the final determination of guilt of the accused, and was the word used by Art. 26 IMTSt and Art. 23 ICTYSt. ‘Decision’ is the more general term comprising also intermediate findings of the court.⁷³⁷ Despite this wording, Art. 74 ICCSt relates to the final judgment and not to any decision.

I. Deliberations

The deliberations are to be held in secret, Art. 74 (4) ICCSt. This is of course necessary for the independence of the judges, otherwise there is the danger that a judge will be put under pressure and endure sanctions. The deliberations shall be concluded ‘within a reasonable period of time after the Trial Chamber has retired to deliberate’, is said by Rule 142 (1) RPE ICC. The ‘reasonableness’ correlates with Art. 67 (1) (c) ICCSt and the principle of a speedy trial contained therein.⁷³⁸

The relevant point of reference for the deliberations is laid down in Art. 74 (2) ICCSt. The judges must base their evaluation on the evidence presented and discussed before them at trial.⁷³⁹ This is a corollary of the principle of a public and oral trial, according to which no secret knowledge of the judges may be used. The framework is determined by the charges as presented by the Prosecutor as confirmed by the Pre-Trial Chamber.

It is only the judges that may participate in the deliberations. Other persons are not called upon and thus not legally allowed to convict a person. The judges furthermore must have been present at each stage of the trial and throughout the deliberations. Art. 76 (1) ICCSt contains this provision, which is a logical prerequisite as otherwise the judge would not know the factual basis of his or her decision and would have no direct appreciation of the evidence presented.⁷⁴⁰ (p. 523)

The practice at the international tribunals and at the ICC raises some doubt in this regard, as the judges rely heavily on help by legal assistants.⁷⁴¹ Legal assistants may be used to prepare a judgment and clarify questions of law. Yet they cannot aid in evaluating the evidence for two reasons: (1) they are not authorized to do so on the grounds of the ICCSt, and (2) they have most probably not been present during the entire proceedings, so they do not have the same factual knowledge as judges that have. Judges should thus always be wary of how they use legal assistants and choose the subjects they wish them to work on very carefully.

II. Written and reasoned judgment

According to Art. 74 (5) ICCSt the judgment must be in writing and it must be reasoned. The judgment is in one of the working languages, that is, either English or French (see Art. 50 (2) ICCSt), and will be translated into the language the accused understands according to Art. 67 (1) (f) ICCSt. Giving reasons for the decision has developed as good practice in international criminal trials. According to Art. 26 IMTSt, the Military Tribunal at Nuremberg was obliged to issue a reasoned judgment, and Art. 23 (2) ICTYSt anticipates that a reasoned opinion must be rendered by the judges.

There are several national jurisdictions in which written and reasoned judgments are not the general rule. This is particular true for states which have a jury system. A jury of twelve women and men is not able to draft a judgment; and beyond this practical argument, juries base their social legitimacy and acceptability on the representative number of laypeople they comprise, and not on their legal expertise.⁷⁴²

In international trials a reasoned judgment is obligatory mainly for two reasons; one being normative, the other of a more practical nature.⁷⁴³ First, the legitimacy and acceptability of a verdict can only come from a convincing argument in a global discourse. The judges must lay open their evidentiary basis. They must establish why evidence was excluded or admitted and they must justify their conviction and explain that no doubts remain as regards the guilt of the accused. The judgment is a means to communicate with global society in general and the specific society concerned, that is, the particular place where the situation at issue occurred. If this is the case, the verdict cannot just be stated; it must also be explained. At least an attempt must be made to make it explicable to the accused, the victims, and other people concerned.(p. 524)

Secondly, the judgment must be in writing and reasoned because there must exist the possibility for appeal.⁷⁴⁴ The Prosecutor and the defence can only evaluate whether the judgment was materially affected by error of fact of law or procedural error if the judges give reasons for their findings. The right to appeal, as embodied in Art. 14 (6) ICCPR, thus presupposes a written and reasoned judgment.

Both reasons are necessary and sufficient by themselves. The Nuremberg Tribunal handed down a reasoned judgment although no appeal was possible, but the attempt was made to explain the judgment in order to be understood in Germany and elsewhere.

III. Pronouncement

Art. 74 (5) ICCSt orders the judgment to be delivered in open court. Rule 144 (1) RPE ICC declares furthermore that the verdict shall be pronounced in the presence of the accused, the Prosecutor, the victims or their legal representatives, and representatives of states which have participated in the proceedings. As has been seen, the public pronouncement is a human rights’ prerequisite.⁷⁴⁵ However Art. 74 (5) makes a concession to the efficiency of the proceedings in that the reading of a summary of the judgment is considered sufficient. Considering the lengthy nature of judgments of the international tribunals, this seems reasonable. What is unclear, however, is whether the summary can be delivered before the written judgment is completed. Of course it might be advisable in order to speed up the proceeding to allow the judgment to be pronounced before the written and reasoned draft is available.⁷⁴⁶ However, experience from Arusha shows that it can sometimes take more than two years before the written judgment is available. It would therefore be prudent to have a definite time limit for the written judgment to be presented. I would suggest that six months after the public pronouncement of the verdict is an adequate period, otherwise there would be a breach of the principle of a speedy trial as the uncertainty for the accused prevails until a final verdict has been reached on appeal.⁷⁴⁷

IV. Structure of the judgment

As to the structure of the judgment, there is no formal provision of what this ought to be, thus each Tribunal will develop its own ‘tradition’ in this regard. The structure of the judgments of the ad hoc Tribunals thus varies, yet they share certain elements:⁷⁴⁸ (p. 525)

(1) Historical background of the situation and the case at hand;
(2) Introduction and identification of the accused and the charges;
(3) A short procedural history;
(4) Identification of the relevant law regarding both the crimes and the forms of responsibility;
(5) A description and evaluation of the evidence presented to the Chamber;
(6) Application of the law to the facts as derived from the evidence;
(7) A dispositif setting forth the verdict for each separate charge.

As separate sentencing proceedings were eliminated at the ICTY and ICTR in 1998, judgments which were handed down after that date contained also an evaluation and application of sentencing factors. At the ICC—as is the case at the SCSL—the sentencing decision will take place in a separate judgment.⁷⁴⁹

V. Reasonable doubts requirements and majority verdicts

The threshold for a conviction (that the judges must be convinced of the guilt of the accused beyond a reasonable doubt) has been discussed elsewhere.⁷⁵⁰ The judges must form their conviction by evaluating the ‘entire proceedings’, as stated in Art. 74 (2) ICCSt. The Statute states that the judges should not look merely at each aspect of hearings individually.⁷⁵¹ Rather, the trial in its entirety is the relevant point of reference. This includes the interrelationship between the individual pieces of evidence, and the appearance of the accused and of the defence counsel.

The judges must decide on every single charge separately according to Rule 142 (2) RPE ICC and if there is more than one accused, they must also decide on the charges against each accused separately, Rule 142 (3) RPE ICC.

The Chamber is called upon to reach unanimity in its decision by virtue of Art. 74 (3) ICCSt, however, should this not be possible, a majority verdict is possible. In that case, there will be a majority judgment and the views of the minority must be included, as foreseen by Art. 74 (5) ICCSt. This is a somewhat surprising norm. Usually the minority will identify itself and issue a (signed) separate and dissenting opinion. This is the way the ad hoc Tribunals have operated, Art. 23 (2) ICTYSt, Art. 22 (2) ICTRSt, Art. 18 SCSLSt, Rule 98ter (C) RPE ICTY, Rule 88 (C) RPE ICTR/SCSL. On the international level the International Court of Justice may count as a predecessor. Art. 57 ICJSt anticipates the right of any judge to deliver a separate opinion. Likewise, Art. 45 (2) ECHR grants the judges of the ECtHR the (p. 526) right to issue a separate opinion. In many national legal systems, in particular those stemming from an Anglo-Saxon background, dissents are foreseen in the legal proceedings.⁷⁵² But even at the Federal Constitutional Court in Germany the justices are allowed to attach dissenting opinions to the majority decision according to Sec. 30 (2) Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).

Yet these national and international judicial bodies are not criminal courts. These organs do not have the power to deliver a guilty verdict and send a person to prison for a considerable amount of time. Discussing a constitutional question differs immensely from a criminal trial. The effect the ICC achieves by allowing dissenting opinions at the trial level are thus to be analysed very carefully with a view to the role of the judge and the functions attributed to a judgment.

What are the pros and cons for allowing separate opinions? In favour of dissenting opinions are the role and the self-perception of the judges. An independent judge should express his/her view whenever s/he so wishes.⁷⁵³ It is interesting to note that in all the Statutes discussed above, the ICJ, the ECtHR, as well as the German Constitutional Court, a judge has a right to issue a separate opinion. Furthermore dissenting opinions might help the development of a new area of law, as is the case with international criminal law. Finally, a separate opinion might assist the accused in that it presents arguments against the verdict, which might be useful on appeal.⁷⁵⁴

Several arguments can be brought against signed dissents. First, the confidentiality of the deliberations is breached as a dissenting opinion unfolds the discussions and arguments amongst the judges.⁷⁵⁵ As the minority judge identifies himself, the majority judges are known as well. Secondly, the verdict is weakened by separate opinions. This indeed might damage the acceptability of the court altogether and the administration of justice in general might sustain a loss. This is true in particular for criminal verdicts and the decision on the facts of the case. If the threshold of proof ‘beyond reasonable doubts’ is overstepped if two judges agree and one judge disagrees, the latter judge obviously had doubts. Should these doubts be termed ‘unreasonable’, which they must be if one wishes to keep to the standard of proof beyond reasonable doubt-formula? Granted that this argument is rather syllogistic, it would still be necessary to explain to the convicted person that doubts of one judge out of three do not suffice. This becomes even worse if the dissenting judge explains in detail by way of delivering a signed dissenting opinion why s/he could not agree with the majority. In the present author’s view, this would not be acceptable for the convicted person.(p. 527)

The balance is thus tipped against allowing signed dissenting opinions at the Trial Chamber level. At the appeals level this is different. There the question is not whether the accused is guilty or not. The standard of proof ‘beyond reasonable doubt’ does not apply as appeals judges only look into the conformity of the trial judgment with the law. Dissenting opinions concerning questions of law do not pose problems regarding the acceptability of the decision.

The Statute of the ICC tries a ‘third way’ as so often and attempts to combine the advantages of one solution with the advantages of the other. The wording of Art. 74 (3) ICCSt supposes that there are no signed dissenting views, but the judgment must identify the passages which were not voted on unanimously and it must clarify the reasons for this. Thus the image of one single judgment is sustained whereas the convicted person and the Prosecutor are given ideas of where the disagreements were amongst the judges and how the argument could be on appeal.

Of course ‘third way’ approaches are often charged with being neither fish nor fowl. Similarly here one could argue that the Statute weakens the verdict as any prudent observer would realize that unanimity could not be reached amongst the judges, while at the same time an open and fair discourse is being cut off because the minority remains anonymous.

Despite all these difficulties, what can be secured is the will of the ICCSt to avoid the identification of a judge as the minority.⁷⁵⁶ In the Trial Chamber, in determining the guilt of the accused, the judges should strive hard for a unanimous judgment. This would indeed make the verdict more powerful and increase the chances of it being acceptable for the participating parties and the general public.

VI. Conclusion

The judgments at international courts or Tribunals serve one aim: to communicate with the accused and the public. The public censure contained in a guilty verdict must thus be explained both to the convicted person and to the global audience. Should the judgment lack convincing reasoning, the decision runs the danger of not being accepted, which would seriously harm the authority of the court and the legitimacy of the proceedings. As justice must not only be done but must be seen to be done, the judgment must be pronounced publicly and should leave no doubt as to the guilt of the defendant in the case of a conviction. If doubts cannot be silenced by reasonable arguments, the defendant is to be discharged, as the standard of proof of guilt beyond a reasonable doubt cannot be met. Under these premises, the admissibility of majority judgments seems somewhat unfortunate.(p. 528)

G. Victim’s Participation

Victims are to be integrated into the proceedings at all stages where their personal interests are affected, Art. 68 (3) ICCSt.⁷⁵⁷ Naturally, this participation stretches to the trial stage. The ICC provisions as we have seen before only establish a basic outline of the rights of participating victims. Instead of setting down a detailed procedure, the judges are granted extensive discretion when deciding the scope of victim participation (see Rule 89 RPE ICC). The few trials which have been conducted before ICC Trial Chambers to-date do not provide enough evidence of how, in general, victims’ participation will work. It is up to the Chamber to decide which competences will be attributed to the victims. In order to allow the court to remain flexible throughout the course of the proceedings, Rule 91 (1) RPE ICC permits a chamber to modify a previous ruling regarding the extent of victim participation.⁷⁵⁸ We can, however, draw some conclusions from the Pre-Trial Chambers’ ruling on victims’ rights during the confirmation hearings. The following rights will thus be available at the trial stage as well, but determined by the Chamber on a case-by-case basis.⁷⁵⁹

(1) The right for a participating victim to choose a legal representative according to Rule 90 (1) RPE ICC,⁷⁶⁰ who has the same competence and legal qualification as defence counsel, as set down in Rule 22 (1) RPE ICC.⁷⁶¹
(2) Where a great number of victims are admitted to participate, the court can limit the number of lawyers representing them, Rule 90 (2)-(4) RPE ICC.
(3) Those victims without the means to pay for a lawyer may be awarded legal aid.⁷⁶²
(4) The victim has the right to make an opening and a closing statement, which can be exercised through legal assistance.⁷⁶³Page Id: 528References(p. 529)
(5) The victim’s representative may, within the limits set by the Chamber’s ruling on the extent of participation, generally attend and participate in hearings and at status conferences (see Rule 90 (2) RPE), that is, s/he is entitled to make oral and written submissions and may file motions.⁷⁶⁴
(6) Upon leave granted by the Chamber the victim may introduce evidence and challenge the admissibility and relevance of the parties’ evidence.⁷⁶⁵
(7) Moreover, the victim’s representative may also be permitted to question witnesses and/or the accused him or herself. Nonetheless, it must be borne in mind that such examinations remain under the strict control of the Chamber. Indeed, the Chamber may require the questions to be submitted in writing prior to the relevant session. Furthermore, the Chamber may direct that the court, on behalf of the victim’s representative, put the questions to the witness or accused (Rule 91 (3) RPE).

The increased involvement and influence of victims and their lawyers poses a serious threat to the structure of defendants’ rights.⁷⁶⁶ In a system that generally leaves the presentation of evidence to the parties, procedural fairness is likely to suffer due to imbalances between the parties. Clearly, where an additional party is permitted to join the proceedings on the side of the prosecution, the equality of arms is distorted in favour of the prosecution and to the disadvantage of the accused.⁷⁶⁷ Art. 66 (2) ICCSt demonstrates that the accused is only confronted with the Prosecutor as his ‘adversary’, whose role is to disprove the presumption of innocence.⁷⁶⁸ Furthermore, delays in the proceedings are inevitable in cases where victims participate, not only because of the possible need for extra translations,⁷⁶⁹ but also because the court faces a vast amount of further input in the form of motions, objections, opinions, etc.⁷⁷⁰Page Id: 529References(p. 530)

An additional problem can be seen in the fact that victims who are present throughout the entire proceedings may be tempted to finetune their testimony in order to secure a conviction. It has thus been argued that the victim who participates actively in the proceedings is barred from giving testimony in court.⁷⁷¹ The victim has to decide at some point which role s/he wants to play at trial. There are two options: (1) exercising the participatory rights as described above, or (2) participating as a witness. Both options, as has been suggested, exclude one another. The Trial Chamber in Katanga and Chui has not drawn such a strict line and has admitted testimony of a victim who participated in the proceedings, as long as ‘the testimony of the victim can make a genuine contribution to the ascertainment of the truth’.⁷⁷² If testimony of a participating victim is allowed, the burden rests on the judge to evaluate the truthfulness and reliability of such a witness. It would be more reasonable to exclude the witness who participates as a victim from the witness box altogether.

The immanent conflict between victim participation and defendants’ rights is why the Trial Chamber has and must retain strict control over victims’ rights in that it evaluates the request of the victim to participate and how the participation would be consistent with the rights of the accused to a fair and expeditious trial.⁷⁷³ The question of guilt or innocence should indeed be decided without prominent participation of the victim.⁷⁷⁴

References

Footnotes:

¹ S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 570 with further references.

² See K Volk, Grundkurs StPO (7th edn, CH Beck 2010) § 18 MN 1.

³ See P Hay, US-Amerikanisches Recht (CH Beck 2000) MN 604.

⁴ See I Bonomy, ‘The Reality of Conducting a War Crimes Trial’, 5 JICJ (2007) 348, 351.

⁵ See in general: D J Harris, ‘The Right to a Fair Trial in Criminal Proceedings as a Human Right’, 16 International & Comparative Law Quarterly (1967) 355.

⁶ S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 514; see also A Fichtelberg, ‘Fair Trials and International Courts: A Critical Evaluation of the Nuremberg Legacy’, 28 Criminal Justice Ethics (2009).

⁷ See R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 400 et subs.

⁸ G Radbruch, Der Geist des Englischen Rechts (Vadenhoeck and Ruprecht 1956) 15.

⁹ It is interesting to note, that the official translation of the IMTSt into the German language did not use the word ‘fair’, but ‘gerecht’ meaning ‘just’ and translates ‘ensure fair trial for the defendants’ as ‘Zwecks Wahrung der Rechte des Angeklagten’ meaning ‘in order to observe the rights of the accused’.

¹⁰ See D Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, Georgetown Law Faculty Working Papers (2008)13 available at: <http://scholarship.law.georgetown.edu/fwps_papers/67>; P Kirsch, ‘Applying the Principles of Nuremberg in the International Criminal Court’, 6 Wash U Global Studies L Rev (2007) 501.

¹¹ See eg, R H Jackson, Report to the President by Mr Justice Jackson, October 7, 1946 (Department of State 1949) p 437 et subs.; see also T Taylor, The Anatomy of the Nuremberg Trials (Bloomsbury 1993) 627 et subs.; stressing in particular the extraordinary situation as regards the crimes and the post-war situation in Germany.

¹² See O Kranzbühler, ‘Nuremberg Eighteen Years Afterwards’, 14 DePaul Law Review (1964-1965) 333 et subs. also C Safferling and P Graebke, ‘Strafverteidigung im Nürnberger Hauptkriegsverbrecherprozess: Strategien und Wirkungen’, 123 ZStW (2011) 47 with further references.

¹³ See Chapter 7 C.

¹⁴ See O Lagodny, ‘Legitimation und Bedeutung des ständigen Internationalen Strafgerichtshofes’, 113 ZStW (2001) 800, 803.

¹⁵ See Chapter 7 B.

¹⁶ ICC Prosecutor v Lubanga, AC, ICC-01/04-01/06-772, 14 December 2006, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, para 37.

¹⁷ This seems to be the opinion of Triffterer/Bitti, Art. 64 MN 9.

¹⁸ S Zappalá, ‘The Rights of Victims v the Rights of the Accused’, 8 JICJ (2010) 137, 149.

¹⁹ See ECtHR Neumeister v Austria, Judgment 27 June 1968, Series A No. 8.

²⁰ See R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 401.

²¹ See S Trechsel and S Summers, Human Rights in Criminal Proceedings (OUP 2006) 86.

²² See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 293.

²³ See also C Safferling, Internationales Strafrecht (Springer 2011) § 13 MN 36 et subs.

²⁴ Compare A Zahar and G Sluiter, International Criminal Law (OUP 2007) 293.

²⁵ See eg, ECtHR Edwards v United Kingdom, Judgment 16 December 1992, Series A No. 247-B, para 34 and Miailhe v France, Judgment 26 September 1996, Rep. 1996-IV, para 34.

²⁶ R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 402 et subs.

²⁷ ICTY Prosecutor v Aleksovski et al., AC, IT-95-14/1-AR73, 16 February 1999, Decision on Prosecutor’s Appeal on Admissibility of Evidence, para 23.

²⁸ Harsh also the criticism of A Zahar and G Sluiter, International Criminal Law (OUP 2007) 294: ‘An approach which might be perceived as damaging to the legitimacy and credibility of the ICTY.’

²⁹ See p 410 et subs.

³⁰ Triffterer/Schabas, Art. 67 MN 5 et subs. This approach adopted by the PrepCom was accepted without dispute by the delegates at the Rome Conference.

³¹ Attributed to William Gladstone (1809-1898), although this attribution is not verifiable. However the maxim has found its way to the reasoning at international tribunals: ICTR Prosecutor v Bagosora, TC II, ICTR-96-7-T, 17 March 1998, Separate Opinion of Judge Yakov Ostrovsky on the Prosecution`s Motion for Adjournment, para 9.

³² See in particular regarding juvenile offenders: F Streng, Jugendstrafrecht (2nd edn, CF Müller 2008) § 1 MN 22.

³³ Report of the ECHR, 50 Years of Activity, p 14. Germany alone has been convicted for violating Art. 6 (1) ECHR by undue delays 54 times.

³⁴ A Zahar and G Sluiter, International Criminal Law (OUP 2007) 300.

³⁵ This is the argument presented by A Whiting, ‘In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered’, 50 Harvard Int’l L J (2009) 323.

³⁶ See HRC General Comment 13 (Article 14), para 10.

³⁷ ECtHR Stögmüller v Austria, Judgment 10 November 1969, Series A No. 9, para 5.

³⁸ ECtHR Wemhoff v Germany, Judgment 27 June 1968, Series A No. 7, para 18.

³⁹ See Chapter 5 A.

⁴⁰ For a discussion in detail see C Safferling, Towards an International Criminal Procedure (OUP 2003) 251 et subs.

⁴¹ ECtHR Abdoella v Netherlands, Judgment 25 November 1993, Series A No. 248-A, para 24; Cevizovic v Germany, Judgment 29 July 2004, Appl. No. 49746/99; see also J Meyer-Ladewig, Europäische Menschenrechtskonvention—EMRK: Handkommentar (Nomos 2006) Art. 5 MN 36 with further references.

⁴² See eg, ECtHR Metzger v Germany, Judgment 31 May 2001, Rep. 2001-XII; Bock v Germany, Judgment 29 March 1989, Series A No. 150.

⁴³ ECtHR Boddaert v Belgium, Judgment 12 October 1992, Series A No. 235-D, para 37 et subs.

⁴⁴ ECtHR Eckle v Germany, Judgment 15 July 1982, Series A No. 51, para 79 et subs.

⁴⁵ ECtHR Neumeister v Austria, Judgment 27 June 1968, Series A No. 8, para 21.

⁴⁶ This was suggested in the case ECtHR Eckle v Germany, Judgment 15 July 1982, Series A No. 51, para 84.

⁴⁷ Ibid, para 82.

⁴⁸ ECtHR König v Germany, Judgment 28 June 1978, Series A No. 28, para 111—this case concerned civil proceedings but the findings are nevertheless valid for a criminal case also.

⁴⁹ See eg, ICTY Prosecutor v Blaškic, TC, IT-95-14-T, 14 December 1996, Denying a Motion for Provisional Release.

⁵⁰ ICTY Prosecutor v Kvocka et al., AC, IT-98-30/1, 25 May 2001, Decision on Interlocutory Appeal by the Accused Zoran Zigic against the Decision of Trial Chamber I dated 5 December 2000, para 19 et subs.

⁵¹ See eg, G Boas, ‘Developments in the Law of Procedure and Evidence at the ICTY and the ICC’, 12 CLF (2001) 167, 168-70 for the early stages of the ICTY; also S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’, 2 JICJ (2004) 526, 527 et subs.

⁵² See eg, M Harmon, ‘The Pre-Trial Process as a Means of Ensuring an Expeditious Trial’, 5 JICJ (2007) 370.

⁵³ ICTY Prosecutor v Kordic and Cerkez, TC, IT-95-14-2, 28 January 1998, Decision on the Prosecutor’s Motion to Hold Pre-Trial Motions in Abeyance.

⁵⁴ This was developed by the decision in ICTY Prosecutor v Kunarac et al., TC, IT-96-23 and 23/1, 18 June 1998, Order Appointing a Pre-Trial Judge.

⁵⁵ See pp 421, 489.

⁵⁶ See ICTY Prosecutor v Krnojelac, TC, IT-97-25-T, 24 February 1999, Decision on the Defence Preliminary Motion on the Form of the Indictment, para 65 et subs.

⁵⁷ ICTY Prosecutor v Blaškic, TC, IT-95-14-T, 17 December 1997, Decision on the Length of the Proceedings and the Time Allocated to the Parties to Present their Evidence. See also ICTY Prosecutor v Blaškic, TC, IT-95-14-T, 3 March 2000, Judgment, para 53 et subs.

⁵⁸ ICTR Prosecutor v Kanyabashi, TC II, ICTR-96-15-I, 23 May 2000, Decision on the Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings.

⁵⁹ ICTR Prosecutor v Mugiraneza, AC, ICTR-99-50-AR73, 27 February 2004, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II-Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief.

⁶⁰ ICTR Prosecutor v Barayagwiza, AC, ICTR-97-19-AR72, 3 November 1999, Decision, para 102 et subs.; see also ICTR Prosecutor v Mugiraneza, TC II, ICTR-99-50-I, 2 October 2003, Decision on Prosper Muguiraneza’s Request Pursuant to Rule 73 for Certification to Appeal Denial of his Motion to Dismiss for Violation of Article 20 (4) (c) of the Statute, Demand for Speedy Trial and Appropriate Relief.

⁶¹ There was some argument in the preparatory phase of the ICCSt to ameliorate the language of the provision; yet in the end the text was retained; see Triffterer/Schabas, Art. 67 MN 26 with further references.

⁶² See Report on the Court Capacity Model, Document ICC-ASP/5/10, para 23.

⁶³ A Zahar and G Sluiter, International Criminal Law (OUP 2007) 302.

⁶⁴ The ECommHR had to delay with such a situation in the case Jentzsch v Germany Report 30 November 1970, 14 YB (1971) 876. The facts of the case can be found in the decision on admissibility, 19 December 1967, 10 YB (1967) 218. The Commission found that six years in pre-trial detention before the trial eventually commenced were compatible with the Convention.

⁶⁵ Very critical as regards the work of the UN tribunals: A Zahar and G Sluiter, International Criminal Law (OUP 2007) 302.

⁶⁶ D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (2nd edn, OUP 1994) XX.

⁶⁷ See eg, G Boas, The Miloševic Trial: Lessons for the Conduct of Complex International Criminal Proceedings (CUP 2007) 64, who observes a certain obsession at the ICTY to conclude the trials speedily.

⁶⁸ See ICTY Prosecutor v Miloševic, AC, IT-02-54-AR73.4, 21 October 2003, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement (Majority Decision Given 30 September 2003), para 20.

⁶⁹ As stated by the ICTY Prosecutor v Tadic, TC, IT-94-1-T, 10 August 1995, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, para 32.

⁷⁰ See eg, HRC General Comment 13 (Article 14), para 6.

⁷¹ See also C Safferling, Towards an International Criminal Procedure (OUP 2003) 226 et subs.

⁷² D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (2nd edn, OUP 1994) 403.

⁷³ See eg, M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, Engel 2005) Art. 14 MN 28.

⁷⁴ See eg, ECtHR Axen v Germany, Judgment 8 December 1983, Series A No. 72.

⁷⁵ See eg, M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, Engel 2005) Art. 14 MN 25.

⁷⁶ See eg, ECtHR Le Compte, van Leuven and De Meyere v Belgium, Judgment 23 June 1981, Series A No. 43; Campbell and Fell v United Kingdom, Judgment 28 June 1984, Series A No. 80.

⁷⁷ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 230 for further references concerning the drafting history.

⁷⁸ In Art. 6 (1) ECHR the juveniles are mentioned explicitly.

⁷⁹ ECommHR X v Austria, Appl No 1913/63, 2 Digest 428.

⁸⁰ In greater detail see C Safferling, Towards an International Criminal Procedure (OUP 2003) 233 et subs.

⁸¹ See Boas/Bischoff/Reid/Taylor, ICL III, 267.

⁸² The concept is also blurred by the fact that Rule 75 (B) RPE ICTY refers to Rule 79, whereas Rule 79 (A) (ii) refers to Rule 75. A vicious circle which was not resolved by the many amendments to the RPE, see C Safferling, Towards an International Criminal Procedure (OUP 2003) 238.

⁸³ ICTY Prosector v Mrkšic et al., TC II, IT-95-13/1-PT, 9 March 2005, Decision on Confidential Prosecution Motions for Protective Measures and Nondisclosure and Confidential Annex A, pp 4-5.

⁸⁴ ICTY Prosecutor v Tadic, TC II, IT-94-1-T,31 July 1996, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness ‘R’, para 7. Similarly Prosecutor v Blaškic, TC I, IT-95-14-PT, 10 July 1997, Decision of Trial Chamber I on the Prosecutor’s Requests of 5 and 11 July 1997 for Protection of Witnesses, para 12.

⁸⁵ ICTY Prosecutor v Blaškic, AC, IT-95-14-AR108bis, 29 October 1997, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, para 65.

⁸⁶ ICTY Prosecutor v Tadic, TC II, IT-94-1-T, 31 July 1996, Decision on the Prosecutor’s Motion Requesting Facial Distortion, and Prosecutor v Tadic, TC II, 12 November 1996, IT-94-1-T, Decision on the Prosecutor’s Motion to Withdraw Protective Measures for Witness K.

⁸⁷ Compare Boas/Bischoff/Reid/Taylor, ICL III, 268.

⁸⁸ See also p 524 for details.

⁸⁹ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-T-109-ENG, 27 January 2009, Transcript Hearing (Open Session), p 55.

⁹⁰ Triffterer/Schabas, Art. 67 MN 11.

⁹¹ Triffterer/Donat-Cattin, Art. 68 MN 34 conclude that both terms are congruent.

⁹² See Triffterer/Dixon/Duffy/Hall, Art. 72 MN 6-7.

⁹³ Ibid, Art. 72 MN 7 with further references.

⁹⁴ See Boas/Bischoff/Reid/Taylor, ICL III, 267 with further references in footnote 97.

⁹⁵ See ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-T-50-ENG, 4 September 2007, Transcript Status Conference, p 6.

⁹⁶ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 241 et subs. for several examples. See also C Laue, ‘Die Hauptverhandlung ohne den Angeklagten’, Juristische Arbeitsblätter (2010) 294-7.

⁹⁷ Bormann died on 2 May 1945. His corpse was only found in 1972.

⁹⁸ IMT Protocols XIV, 625 and XVII, 287.

⁹⁹ A further submission to delay the case was however denied, IMT Protocols XVII, 272.

¹⁰⁰ See eg, IMT Protocols XIV, 625.

¹⁰¹ See IMT Protocols XVII, 489.

¹⁰² ECtHR Brozicek v Italy, Judgment 19 December 1989, Series A No. 167, para 45, and Colozza v Italy, Judgment 12 February 1985, Series A No. 89, para 27.

¹⁰³ See ECtHR Van Geyseghem v Belgium, Judgment 21 January 1999, Rep. 1999-I; Krombach v France, Judgment 13 February 2001, Rep. 2001-II.

¹⁰⁴ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 242-3.

¹⁰⁵ See HRC Mbenge v Zaire Doc. A/38/40, p. 134; and HRC General Comment 13 (Article 14), para 11.

¹⁰⁶ See ECtHR Colozza v Italy, Judgment 12 February 1985, Series A No. 89, paras 29-30.

¹⁰⁷ See also the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para 101.

¹⁰⁸ ICTR Prosecutor v Nahimana et al., AC, ICTR-99-52-A, 28 November 2007, Judgment, para 109.

¹⁰⁹ ICTR Prosecutor v Nahimana et al., AC, ICTR-99-52-A, 28 November 2007, Judgment, para 99-107.

¹¹⁰ ICTY Prosecutor v Popovic et al., TC, IT-05-88-T, 28 April 2009, Trial Transcript, p 33312.

¹¹¹ ICTY Prosecutor v Miloševic, AC, IT-02-54 AR73.7, 1 November 2004, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, para 13.

¹¹² See Boas/Bischoff/Reid/Taylor, ICL III, 274.

¹¹³ ICTR Prosecutor v Zigiranyirazo, AC, ICTR-2001-73-AR73, 30 October 2006, Decision on Interlocutory Appeal, para 12.

¹¹⁴ ICTY Prosecutor v Stanišic and Simatovic, AC, IT-03-69-AR 73.2, 16 May 2008, Decision on Defence Appeal of the Decision on Future Course of Proceedings, para 15, 18-19.

¹¹⁵ ICTY Prosecutor v Stanišic and Simatovic, TC I, IT-03-69-PT, TC, 29 May 2009, Decision on Start of Trial and Modalities for Trial, para 13.

¹¹⁶ The line is difficult to draw. In recent cases in Germany, concerns regarding age and frailty of alleged Nazi criminals were put aside in favour of prosecution. See S Beck, ‘Does Age Prevent Punishment? The Struggles of the German Juridical System with Alleged Nazi Criminals: Commentary on the Criminal Proceedings against John Demjanjuk and Heinrich Boere’, 11 GLJ (2010) 347-66.

¹¹⁷ See eg, V. von der Lippe, Nürnberger Tagebuchnotizen (Knapp 1951) 20, 23.

¹¹⁸ IMT Protocols II, 548. See also W Harris, Tyranny on Trial (3rd edn, Southern Methodist UP 1999) 31.

¹¹⁹ Eg, by the US psychologist Gustave Martin Gilbert, see G Gilbert, Nuremberg Diary (Da Caop Press 1995) 213.

¹²⁰ And even in the Judgment the judges emphasized Hess’s fitness, IMT Protocols I, 189, 320 et subs.

¹²¹ ICTY Prosecutor v Nikolic, TC, IT-94-2-R61, 20 October 1995, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence; Prosecutor v Martic, TC, IT-95-11-R61, 8 March 1996, Decision; Prosecutor v Mrkšic, Radic and Šljivancanin, TC, IT-95-13-R61, 3 April 1996, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence; Prosecutor v Rajic, TC, IT-95-12-R61, 13 September 1996, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence; Prosecutor v Karadžic and Mladic, TC, IT-95-5-R61 and IT-95-18-R61, 11 July 1996, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence.

¹²² For a more detailed analysis of these reviews see C Safferling, Towards an International Criminal Procedure (OUP 2003) 243-5.

¹²³ Ibid, 245-50.

¹²⁴ Triffterer/Schabas, Art. 63 MN 15.

¹²⁵ See Triffterer/Schabas, Art. 63 MN 11.

¹²⁶ See Boas/Bischoff/Reid/Taylor, ICL III, 272.

¹²⁷ See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 314 et subs.; T Vormbaum, Einführung in die moderne Strafrechtsgeschichte (Springer 2008) 100 et subs.; C Safferling, Towards an International Criminal Procedure (OUP 2003) 5-9 as to the historic development.

¹²⁸ K Volk, ‘Napoleon und das deutsche Strafrecht, 31 Juristische Schulung (1991) 281.

¹²⁹ In greater detail: C Safferling, Towards an International Criminal Procedure (OUP 2003) 9-14.

¹³⁰ K Volk, Grundkurs StPO (7th edn, CH Beck 2010) § 18 MN 25.

¹³¹ IMT Protocols IX, 726.

¹³² Ibid, 729 et subs.

¹³³ Ibid, 742.

¹³⁴ S Stavros, The Guarantees for Accused Persons under Article 6 of the ECHR (Brill 1993) 189.

¹³⁵ D J Harris, M O’Boyle, and C Warbrick, Law of the ECHR (LexisNexis 1995) 218.

¹³⁶ C Safferling, Towards an International Criminal Procedure (OUP 2003) 240.

¹³⁷ See HRC Touron v Uruguay Doc. A/36/40, 120; ECtHR Fredin v Sweden (No. 2), Judgment 23 February 1994, Series A No. 283-A, paras 21-2.

¹³⁸ See ECtHR Fredin v Sweden (No. 2), Judgment 23 February 1994, Series A No. 283-A, paras 21-2.

¹³⁹ Similarly A Zahar and G Sluiter, International Criminal Law (OUP 2007) 315.

¹⁴⁰ ICTY Prosecutor v Strugar, TC II, IT-01-42-T, 9 September 2004, Decision II on the Admissibility of Certain Documents, para 9.

¹⁴¹ ICTY Prosecutor v Miloševic, TC III, IT-02-S4-T, 12 February 2004, Decision on Prosecution Motion for Admission of Witness Statement of Investigator Bernard O’Donnell in lieu of Viva Voce Testimony Pursuant to Rules 54 and 92bis, p 3.

¹⁴² ICTY Prosecutor v Galic, TC I, IT-98-29-T, 11 September 2002, Decision on the Admission into Evidence of Documents Tendered from the Bar Table by the Prosecutor, p 3.

¹⁴³ See J Nemitz, ‘Die Hauptverhandlug unter besonderer Berücksichtigung des Beweisrechts’, in: S Kirsch (ed), Internationale Strafgerichtshöfe (Nomos 2005) 53, 66.

¹⁴⁴ ICTY Prosecutor v Miloševic, AC, IT-02-54-AR73.4, 30 September 2003, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, para 16.

¹⁴⁵ See ICTY Prosecutor v Miloševic, AC, IT-02-54-AR73.4, 21 October 2003, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, para 8.

¹⁴⁶ ICTY Prosector v Naletilic and Martinovic, TC, 31 March 2003, IT-98-34-T, Judgment, para 12; J Nemitz, ‘Die Hauptverhandlug unter besonderer Berücksichtigung des Beweisrechts’, in: S Kirsch (ed), Internationale Strafgerichtshöfe (Baden-Baden 2005) 53, 59.

¹⁴⁷ C Safferling, Towards an International Criminal Procedure (OUP 2003) 240.

¹⁴⁸ Boas/Bischoff/Reid/Taylor, ICL III, 352 et subs.

¹⁴⁹ ICC Prosecutor v Lubanga, PTC, ICC-01/04-01/06-517, 4 October 2006, Decision Concerning the Prosecution Proposed Summary Evidence, p 3 et subs.

¹⁵⁰ See Chapter 5 B.

¹⁵¹ Opined by Boas/Bischoff/Reid/Taylor, ICL III, 356.

¹⁵² See F Jacobs and R White, The European Convention on Human Rights (2nd edn, OUP 1996) 150.

¹⁵³ R H Jackson, ‘The Rule of Law amongst Nations’, 19 Temple Law Quarterly (1945-46) 135, address delivered before the American Society of International Law, Washington DC, 14 April 1945.

¹⁵⁴ IMT Nuremberg, Vol 1, 342. See also M Bazyler, ‘The Role of the Soviet Union in the International Military Tribunal at Nuremberg’, in: H Reginbogin and C Safferling (eds), The Nuremberg Trials: International Criminal Law Since 1945 (Saur 2006) 42.

¹⁵⁵ See in summary Triffterer/Schabas, Art. 66 MN 2.

¹⁵⁶ See Chapter 4.

¹⁵⁷ See HRC General Comment 13 (Article 14) para 7; and ECtHR Barberà, Messeguè and Jabardo v Spain, Judgment 6 December 1988, Series A No. 147, para 77. See also R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 403 et subs.; S Zappalà, Human Rights in International Criminal Procedure (OUP 2003) 91.

¹⁵⁸ In further detail as regards the different approaches and how to solve them, see C Safferling, Towards an International Criminal Procedure (OUP 2003) 257 et subs.

¹⁵⁹ See ECommHR X v United Kingdom, Decision, 19 July 1972, Appl. No. 5124/71, 42 CD 135; ECtHR Salabiaku v France, Judgment 7 October 1988, Series A No. 141-A; Pham Hoang v France, Judgment 25 September 1992, Series A No. 243.

¹⁶⁰ See eg, also R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 743.

¹⁶¹ See ECtHR Jalloh v Germany, Judgment 11 July 2006, Rep. 2006-IX, para 95 et subs.; Khan v United Kingdom, Judgment 12 May 2000, Rep. 2000-V, para 34 and Allan v United Kingdom, Judgment 5 November 2002, Rep. 2002-IX, para 42 concerning Art. 6 ECHR.

¹⁶² ECtHR, Heaney and McGuiness v Ireland, Judgment 21 December 2000, Rep. 2000-VII, para 57 et subs.

¹⁶³ See eg, HRC General Comment 13 (Article 14), para 7, disregarding the fact that the formula has been deliberately rejected in the drafting history of the ICCPR, see E/CN.4/365; E/CN.4/SR.156, 6.

¹⁶⁴ For further discussion see C Safferling, Towards an International Criminal Procedure (OUP 2003) 259 et subs. with references.

¹⁶⁵ See Boas/Bischoff/Reid/Taylor, ICL III, 385.

¹⁶⁶ See also S Trechsel, Human Rights in Criminal Proceedings (OUP 2005) 163.

¹⁶⁷ ECtHR Minelli v Switzerland, Judgment 25 March 1983, Series A No. 62, para 37.

¹⁶⁸ See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 302.

¹⁶⁹ ECtHR Allenet de Ribemont v France, Judgment 10 February 1995, Series A No. 308, para 38.

¹⁷⁰ A Zahar and G Sluiter, International Criminal Law (OUP 2007) 302.

¹⁷¹ ECtHR Time Newspaper v United Kingdom, Judgment 5 March 1999, Series A No. 30, para 63; Worm v Austria, Judgment 29 August 1997, Rep. 1997-V, para 50.

¹⁷² See also R Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (DeGruyter 2002) 718.

¹⁷³ See ICTR Prosecutor v Ntuyahaga, TC, ICTR-98-40-T, 18 March 1999, Decision on the Prosecutor’s Motion to Withdraw the Indictment.

¹⁷⁴ ICTY Prosecutor v Delalic et al., TC II, IT-96-21-T, 19 August 1998, Decision on the Prosecution’s Alternative Request to Reopen the Prosecution’s Case, para 20.

¹⁷⁵ In greater detail: C Safferling, Towards an International Criminal Procedure (OUP 2003) 262-3.

¹⁷⁶ See S Zappalà, Human Rights in International Criminal Procedure (OUP 2003) 85-6.

¹⁷⁷ Triffterer/Schabas, Art. 66 MN 10.

¹⁷⁸ Ibid, Art. 66 MN 18.

¹⁷⁹ Ibid, Art. 66 MN 19.

¹⁸⁰ See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 362.

¹⁸¹ See ICTY Prosecutor v Delalic et al., TC, IT-96-21-T, 16 November 1998, Judgment, para 1157-60.

¹⁸² See also K Volk, Grundkurs StPO (7th edn, CH Beck 2010) § 18 MN 18.

¹⁸³ A different approach is given by Triffterer/Schabas, Art. 66 MN 20, who opines that such a burden would be an impossible task for the Prosecutor.

¹⁸⁴ Differently again Triffterer/Schabas, Art. 66 MN 21, who states, that Art. 28 ICC contains an effective reversal of the onus of proof.

¹⁸⁵ See p 339.

¹⁸⁶ See also Triffterer/Schabas, Art. 66 MN 23.

¹⁸⁷ Based on proposals by France and Germany, see C Safferling, Towards an International Criminal Procedure (OUP 2003) 264 with references.

¹⁸⁸ See also Triffterer/Schabas, Art. 66 MN 28, who raises the question but in the end endorses—in a rather positivistic way—the Statute.

¹⁸⁹ C Safferling, Towards an International Criminal Procedure (OUP 2003) 264.

¹⁹⁰ Triffterer/Schabas, Art. 66 MN 27.

¹⁹¹ Differently Triffterer/Schabas, Art. 66 MN 22, who advises the ICC to turn to the ECtHR’s restriction of the presumption of innocence.

¹⁹² A Zahar and G Sluiter, International Criminal Law (OUP 2007) 303.

¹⁹³ See Chapter 10.

¹⁹⁴ S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 514; ICTY Prosecutor v Aleksovski, AC, IT-9S-14/l-AR73, 16 February 1999, Decision on Prosecutor’s Appeal on Admissibility of Evidence, para 23.

¹⁹⁵ ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2-A, 11 September 2001, Decision on the Application by Mario Cerkez for Extension of Time to File his Respondent’s Brief, para 5; Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment, para 48; ICTR Prosecutor v Kayishema and Ruzindana, AC, ICTR-9S-1-A, 1 June 2001, Judgment (Reasons), para 67.

¹⁹⁶ ICTY Prosecutor v Delalic et al., TC II, IT-96-21-T, 4 February 1998, Decision on the Prosecution’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, para 45; Prosecutor v Kupreškic et al., AC, IT-95-16-AR73.3, 15 July 1999, Decision on Appeal by Dragan Papic against Ruling to Proceed by Deposition, para 24.

¹⁹⁷ S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 514.

¹⁹⁸ See K Ambos, ‘Der EGMR und die Verfahrensrechte’, 115 ZStW (2003) 583.

¹⁹⁹ See S Kirsch, ‘The Trial Proceeding before the ICC’, 6 ICLR (2006) 275, 284.

²⁰⁰ See in greater detail C Safferling, ‘Audiatur et altera pars—die prozessuale Waffengleichheit als Prozessprinzip?’, 24 NStZ (2004) 181.

²⁰¹ S Zappalá, ‘The Rights of Victims v the Rights of the Accused’, 8 JICJ (2010) 137, 149: ‘To consider that equality implies that all parties to the trial must be treated on an equal footing is to misinterpret the requirements of fairness and equality’.

²⁰² In greater detail: C Safferling, ‘Audiatur et altera pars—die prozessuale Waffengleichheit als Prozessprinzip?’ 24 NStZ (2004) 181.

²⁰³ O Kranzbühler, Rückblick auf Nürnberg (Zeit-Verlag 1949) 6 et subs.

²⁰⁴ See eg, UN HRC Morael v France, Communication No. 207/1986, 28 July 1989, UN Doc. CCPR/8/Add/1, 416.

²⁰⁵ Leading cases on this issue: ECHR Ofner v Austria, Appl. No. 524/59, Report 23 November 1962, 6 YB, 680 and Hopfinger v Austria, Appl. No. 617/59, Report 23 November 1962, 6 YB, 680.

²⁰⁶ ECtHR Barberà v Spain, Judgment 6 December 1988, Series A No. 146, 67, 78 and in a civil lawsuit Dombo Beheer BV v Netherlands, Judgment 27 October 1993, Series A No. 273.

²⁰⁷ ECtHR Brandstetter v Austria, Judgment 28 August 1991, Series A No. 211, 59.

²⁰⁸ ECtHR Lietzow v Germany, Judgment 13 February 2001, para 44; Schöps v Germany, Judgment 13 February 2001, para 44 and Garcia Alva v Germany, Judgment 13 February 2001, para 39.

²⁰⁹ ECHR Murray v United Kingdom, Appl. No. 18731/91, Reports 1996-I, 70.

²¹⁰ ECtHR Edwards v United Kingdom, Judgment 16 December 1992, Series A No. 247-B; Brogan et al. v United Kingdom, 29 November 1988, Series A No. 145-B, para 65.

²¹¹ A different view is taken by K Ambos, Internationales Strafrecht (2nd edn, CH Beck 2007) §10 MN 14.

²¹² See R Esser, Auf dem Weg zu einem Europäischen Strafverfahrensrecht (DeGruyter 2002) 411.

²¹³ ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2-A, 17 December 2004, Judgment, para 175; Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment, para 48; ICTR Prosecutor v Kayishema and Ruzindana, AC, ICTR-95-1-A, 1 June 2001, Judgment (Reasons), para 69.

²¹⁴ ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2-A, 17 December 2004, Judgment, para 175; Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment, para 44.

²¹⁵ ICTY Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment, para 49; ICTR Prosecutor v Kayishema and Ruzindana, AC, ICTR-9S-1-A, 1 June 2001, Judgment (Reasons), para 73.

²¹⁶ ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2-A, 17 December 2004, Judgment, para 175. See also ICTY Manual on Developed Practices (2009), 182, regarding access to IT for the accused in order to prepare his/her defence, and 211 as regards facilities in the form of administrative and logistical support from the Tribunal for the defence.

²¹⁷ See eg, ICTY Prosecutor v Tadic, TC, TC II, IT-94-1-T, 27 November 1996, Separate Opinion of Judge Vohrahon Prosecution Motion for Production of Defence Witness Statements; see also S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 560 et subs.; G McIntyre, ‘Equality of Arms—Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, 16 LJIL (2003) 269, 272 et subs.

²¹⁸ See Chapter 7 D.

²¹⁹ ICTY Prosecutor v Delalic et al., TC II, IT-96-21-T, 1 May 1997, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landzo, para 29.

²²⁰ 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 & Policy (2001) 87, 105; S Kirsch, ‘The Trial Proceeding before the ICC’, 6 ICLR (2006) 275, 284 et subs.

²²¹ ICTR Prosecutor v Nahimana, Barayagwiza, Ngeze, AC, ICTR-99-52-A, 28 November 2007, Judgment, para 220 with further references.

²²² See ICTY Prosecutor v Milutinovic et al., AC, IT-99-37-AR73.2, 13 November 2003, Decision on Interlocutory Appeal on Motion for Additional Funds, para 24 (emphasis added).

²²³ Critically Ahlbrecht/Kirsch, MN 1290.

²²⁴ G McIntyre, ‘Equality of Arms—Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, 16 LJIL (2003) 269, 272.

²²⁵ Ibid, 269, 320.

²²⁶ ICTY Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment, para 51 et subs.

²²⁷ A Zahar and G Sluiter, International Criminal Law (OUP 2007) 294.

²²⁸ It is interesting to note, that one of the main advocates of the equality of arms principles, K Ambos, does not mention this principle in his book on international criminal law as being relevant for the procedure at the ICC or the Tribunals, see K Ambos, Internationales Strafrecht (2nd edn, CH Beck 2007) § 8 MN 19-49.

²²⁹ See Triffterer/Guariglia/Harris/Hochmayr, Art. 57 MN 17 et subs.; S Kirsch, ‘The Trial Proceeding before the ICC’, 6 ICLR (2006) 275, 288.

²³⁰ See p 420 et subs.

²³¹ See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 295.

²³² Ibid, 293.

²³³ J Jones, ‘The Gamekeeper Turned Poacher’s Tale’, 2 JICJ (2004) 486, 493.

²³⁴ S Negri, ‘The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’, 5 ICLR (2005) 513, 569.

²³⁵ See C Safferling, ‘Audiatur at altera pars—die prozessuale Waffengleichheit als Prozessprinzip?’, 24 NStZ (2004) 181, 187 et subs.

²³⁶ See U Kohlbacher, Verteidigung und Verteidigungsrechte unter dem Aspekt der ‘Waffengleichheit’ (Schulthess 1979) 2 and J Renzikowski, ‘ “Fair Trial” im Strafprozess’, in: D Dölling et al. (eds), Jus humanum: Grundlagen des Rechts und Strafrecht—Festschrift für E-J Lampe (DeGruyter 2003) 791, 802.

²³⁷ G Radburch, Der Geist des Englischen Rechts (Vadenhoeck and Ruprecht, 1956) 15 et subs. writing as an observer about English law.

²³⁸ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 6, 10.

²³⁹ This prosecutorial strategy was criticized for being too clinical, see eg, L Douglas, ‘History and Memory in the Courtroom: Reflections on Perpetrator Trials’, in: H Reginbogin and C Safferling (eds), The Nuremberg Trial: International Criminal Law Since 1945 (Saur 2006) 89.

²⁴⁰ C Safferling, Towards an International Criminal Procedure (OUP 2003) 306 et subs.

²⁴¹ ICTY Prosecutor v Blaškic, TC I, IT-95-14-T, 21 January 1998, Decision on Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its Reliability, para 29.

²⁴² ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2-AR73.5, 21 July 2000, Decision on Appeal Regarding Statement of a Deceased Witness, para 24.

²⁴³ See also ICTY Prosecutor v Rajic, TC, IT-95-12-R61, 13 September 1996, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, para 23.

²⁴⁴ S Kay, ‘The Move from Oral Evidence to Written Evidence’, 2 JICJ (2004) 495; S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’, 2 JICJ (2004) 526, 530 et subs. Both are very critical towards this development. See also R Cryer, H Friman, D Robinson, and E Wilmshurst, An Introduction to International Criminal Law and Procedure (2nd edn, CUP 2010) 467.

²⁴⁵ G Boas, ‘Developments in the Law of Procedure and Evidence at the ICTY and the ICC’, 12 CLF (2001) 167, 181-3.

²⁴⁶ K Ambos, Internationales Strafrecht (2nd edn, CH Beck 2007) § 8 MN 41.

²⁴⁷ See K Ambos and D Miller, ‘Structure and Function of the Confirmation Procedure before the ICC from a Comparative Perspective’, 7 ICLR (2007) 335, 338. The Rome Statute differentiates between the concept of ‘constituting’ and ‘assignment’, without being clear about the consequences. As to the drafting history, see Triffterer/Bitti, Art. 64 MN 11.

²⁴⁸ C Möller, ‘Das Vorverfahren im Strafprozess vor dem Internationalen Straftribunal für das ehemalige Jugoslawien (“Pre-Trial and Preliminary Proceedings”)’, in: S Kirsch (ed), Internationale Strafgerichtshöfe (Nomos 2005) 19, 49.

²⁴⁹ See also M Harmon, ‘The Pre-Trial Process at the ICTY as a Means of Ensuring Expeditious Trials’, 5 JICJ (2007) 377, 384-8, discussing the different types of Conferences: Rule 65ter-Conferences, Status Conferences and Pre-Trial Conferences. The author quite rightly points to the problem that the Senior Legal Officer lacks the competence to decide matters. A serious discussion about the relevant issues of the case and the possibility to delimit the range of the indictment will thus not take place.

²⁵⁰ C Möller, ‘Das Vorverfahren im Strafprozess vor dem Internationalen Straftribunal für das ehemalige Jugoslawien (“Pre-Trial and Preliminary Proceedings”)’, in: S Kirsch (ed), Internationale Strafgerichtshöfe (Nomos 2005) 19, 50.

²⁵¹ See Boas/Bischoff/Reid/Taylor, ICL III, 244 with further references.

²⁵² As has been the cases: ICTY Prosecutor v Šešelj, TC I, IT-03-67-PT, 8 November 2006, Decision on the Application of Rule 73bis; Prosecutor v Milutinovic et al., TC, IT-05-87-T, 11 July 2006, Decision on Application of Rule 73bis. In the Karadžic case, the Prosecutor was threatened with shortening the case if he, the Prosecutor, did not do so himself: Prosecutor v Karadžic, TC, IT-95-5/18-PT, 22 July 2009, Order to the Prosecution under Rule 73bis (D), para 5.

²⁵³ G Boas, ‘Developments in the Law of Procedure and Evidence at the ICTY and the ICC’, 12 CLF (2001) 167, 172-4 (with a view to Rule 65bis RPE ICTY).

²⁵⁴ ICTY Prosecutor v Krajišnik, TC, IT-00-39, 1 August 2001, Decision on Motion for the Clarification in Respect of Application of Rule 65ter, 66 (B) and 67 (C).

²⁵⁵ ICTR Prosecutor v Ndayambaje et al., TC II, IT-96-8-T, 14 December 2001, Decision on the Prosecutor’s Motion to Modify her List of Exhibits.

²⁵⁶ G Higgins, ‘Fair and Expeditious Pre-Trial Proceedings: The Future of International Criminal Trials’, 5 JICJ (2007) 394, 398 et subs.; see also Boas/Bischoff/Reid/Taylor, ICL III, 243.

²⁵⁷ M Harmon, ‘The Pre-Trial Process at the ICTY as a Means of Ensuring Expeditious Trials’, 5 JICJ (2007) 377, 389-92.

²⁵⁸ In detail: Triffterer/Bitti, Art. 64 MN 13.

²⁵⁹ See Triffterer/Bitti, Art. 64 MN 12.

²⁶⁰ ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-T-18-Red-ENG, 8 December 2009, Transcript Status Conference, p 1.

²⁶¹ The terminology is highly unfortunate as the Rome Statute itself does not use the term ‘defences’ for very good reasons, see C Safferling, Internationales Strafrecht (Springer 2011) § 5 MN 11.

²⁶² A different view is taken by Boas/Bischoff/Reid/Taylor, ICL III, 248 who opine that the ICC judges do not have direct procedural authority to limit the number of witnesses or fix the number of crime sites.

²⁶³ See Triffterer/Bitti, Art. 64 MN 12, which states that representatives of victims may also certainly attend in accordance with Regulation 54 (o).

²⁶⁴ See list given by Triffterer/Bitti, Art. 64 MN 12.

²⁶⁵ See p 383 et subs.

²⁶⁶ I Bonomy, ‘The Reality of Conducting a War Crimes Trial’, 5 JICJ (2007) 348, 352.

²⁶⁷ See eg, ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06, 18 July 2007, Request for Submissions on the Subjects that Require Early Determination; Prosecutor v Katanga/Chui, TC II, ICC-01/04-01/07-747-tENG, 13 November 2008, Order Instructing the Participants and the Registry to Respond to Questions of Trial Chamber II for the Purpose of the Status Conference (Article 64 (3) (a) of the Statute).

²⁶⁸ Judge Fulford was mindful of the differences in the form of the hearing. ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06, 4 September 2007, Transcript Status Conference, p 3. Also TC II emphasized the difference: Prosecutor v Katanga/Chui, TC II, ICC-01/04-01/07-747-tENG, 13 November 2008, Order Instructing the Participants and the Registry to Respond to Questions of Trial Chamber II for the Purpose of the Status Conference (Article 64 (3) (a) of the Statute), para 8.

²⁶⁹ P Lewis, ‘The Rules of Procedure and Evidence of the International Criminal Court: Confirmation Hearing to Trial’, in: H Fischer, C Kreß, and S R Lüder (eds), International and National Prosecution of Crimes under International Law: Current Developments (Berlin Verlag 2001) 219, 228.

²⁷⁰ See Chapter 5.

²⁷¹ See also Triffterer/Bitti, Art. 64 MN 12.

²⁷² Triffterer/Bitti, Art. 64 MN 12.

²⁷³ See Ahlbrecht/Kirsch MN 1422.

²⁷⁴ See Ahlbrecht/Kirsch MN 1423.

²⁷⁵ Rules 130 and 131 RPE ICC are unclear as regards the responsibility for the record. The record is ‘transmitted’ to the Trial Chamber, but it is ‘maintained’ by the Registry.

²⁷⁶ Ahlbrecht/Kirsch MN 1416; see also S Kirsch, ‘The Trial Proceedings before the ICC, 6 ICLR (2006) 275, 279 et subs.

²⁷⁷ As to the drafting history, see H Brady, ‘Setting the Record Straight: A Short Note on Disclosure and “the Record of the Proceedings”’, in: H Fischer, C Kreß, and S R Lüder (eds), International and National Prosecution of Crimes under International Law: Current Developments (Berlin Verlag 2001) 261-73.

²⁷⁸ S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’, 2 JICJ (2004) 526, 530 et subs.

²⁷⁹ See p 403 et subs.

²⁸⁰ ICTY Prosecutor v Blagojevic et al., AC, IT-02-60-AR73, IT-02-60-AR73.2, IT-02-60-AR73.3, 8 April 2003, Decision, para 29.

²⁸¹ See W Schomburg, ‘Wahrheitsfindung im Internationalen Gerichtssaal’, Vereinte Nationen (2009) 3.

²⁸² See also C Kreß, ‘Vorbemerkungen Vor III 26 (“Internationaler Strafgerichtshof”)’, in: H Grützner, P G Pötz, and C Kreß (eds), Internationaler Rechtshilfeverkehr in Strafsachen (CF Müller 2002) MN 136.

²⁸³ See S Kirsch, ‘The Trial Proceedings Before the ICC’, 6 ICLR (2006) 275, 279 et subs.

²⁸⁴ See the discussion between the presiding Judge Fulford and Ms Kneuer representing the Prosecutor in the Bemba case: ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-T-14-ENG ET, 7 October 2009, Transcript Status Conference, p. 17.

²⁸⁵ See above Chapter 2 for an analysis of this special context.

²⁸⁶ See Boas/Bischoff/Reid/Taylor, ICL III, 198.

²⁸⁷ Like the ‘Doctors’ Trial’, the ‘Jurist Trial’, the ‘Ministries Trial’, or the ‘High Command Case’; see W Harris, Tyranny on Trial (Southern Methodist University Press 1999) 546 et subs.

²⁸⁸ Like the ‘Einsatzgruppen Trial’.

²⁸⁹ As done in the Dachau Trials, the Bergen-Belsen Trials, or later in the so-called Auschwitz Trial in Germany.

²⁹⁰ As emphasized by Boas/Bischoff/Reid/Taylor, ICL III, 198.

²⁹¹ To give one example each: ICTY Prosecutor v Naletilic and Martinovic, IT-98-34-I, 18 December 1998, Indicment; ICTR Nyiramasuhuko and Ntahobali, ICTR-97-21-I, 26 May 1997, Indictment.

²⁹² See Boas/Bischoff/Reid/Taylor, ICL III, 202.

²⁹³ See ICTY Prosecutor v Milutinovic et al., TC, IT-03-70-PT, 8 July 2005, Decision on Prosecution Motion for Joinder. In this case reference was made to the prima facie case of all of the accused being part of a joint criminal enterprise.

²⁹⁴ Ibid (reference omitted); see also ICTR Prosecutor v Bagosora et al., TC I, ICTR-98-41-T, 27 March 2006, Decision on Request for Severance of Three Accused. Similarly ICTY Prosecutor v Delalic et al., TC II, IT-96-21-T, 25 September 1996, Decision on the Motion of the Accused Delalic to Be Tried Separately from his Co-Accused. The request has been denied by the Chamber. Leave to appeal was not granted.

²⁹⁵ See eg, SCSL Prosecutor v Norman, SCSL-2003-08-PT; Prosecutor v Fofana, SCSL-2003-11-PT; Prosecutor v Kondewa, SCSL-2003-12-PT, 27 February 2004, Decision and Order on Prosecution Motions for Joinder, referring frequently to the UN Tribunal’s Case Law. In greater detail see Boas/Bischoff/Reid/Taylor, ICL III, 204-6. As regards the accused at the SCSL see Chapter 1, p 32 et subs.

²⁹⁶ See Triffterer/Bitti, Art. 64 MN 19.

²⁹⁷ ICC Prosecutor v Katanga and Chui, PTC I, ICC-01/04-01/07-257, 10 March 2008, Decision on the Joinder of the Cases against Germain Katanga and Mathieu Ngudjolo Chui.

²⁹⁸ See Boas/Bischoff/Reid/Taylor, ICL III, 206.

²⁹⁹ ICC Prosecutor v Katanga and Chui, PTC I, ICC-01/04-01/07-257, 10 March 2008, Decision on the Joinder of the Cases against Germain Katanga and Mathieu Ngudjolo Chui, p 6.

³⁰⁰ Ibid, p 8 (reference omitted).

³⁰¹ Boas/Bischoff/Reid/Taylor, ICL III, 206.

³⁰² ICC Prosecutor v Katanga and Chui, PTC I, ICC-01/04-01/07-257, 10 March 2008, Decision on the Joinder of the Cases against Germain Katanga and Mathieu Ngudjolo Chui, p 8 et subs.

³⁰³ ICTY Prosecutor v Popovic et al., TC, IT-05-88-PT, 26 June 2006, Decision on Severance of Case against Milorad Trbic, p 3.

³⁰⁴ Eg, ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 20 September 2002, Decision on Prosecutor’s Oral Request for the Separation of Trials, para 26-9.

³⁰⁵ ICTR Prosecutor v Bizimana and Nzabonimana, TC I, ICTR-98-44-I, 7 November 2008, Decision on Prosecution Motion for Severance and Amendment of Indictment, para 5.

³⁰⁶ ICTR Prosecutor v Karemera, Ngirupatse and Nzirorera, TC III, ICTR-98-44-T, 10 September 2009, Decision on Remand Regarding Continuation of Trial, para 6.

³⁰⁷ See Triffterer/Bitti, Art. 64 MN 19.

³⁰⁸ See p 92.

³⁰⁹ Critical in this regard S Kirsch, ‘The Trial Proceedings before the ICC’, 6 ICLR (2006) 275, 279 et subs.

³¹⁰ See also T Weigend, ‘Should We Search for the Truth, and Who Should Do it?’ 36 North Carolina Journal of International Law and Commercial Regulation (2011) 389, 408 et subs.

³¹¹ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 220-5.

³¹² As to consequences on appeal see p 535 et subs.

³¹³ For a discussion in detail see C Safferling, Towards an International Criminal Procedure (OUP 2003) 270.

³¹⁴ It should be noted that even in Germany we often find a separate guilt-finding stage being exercised informally. See H Schöch and W Schreiber, ‘Ist die Zweiteilung der Hauptverhandlung praktikabel?’, 11 Zeitschrift für Rechtspolitik (1978) 457.

³¹⁵ ICTY Prosecutor v Tadic, TC II, IT-94-1-T, 7 May 1997, Opinion and Judgment.

³¹⁶ ICTY Prosecutor v Tadic, TC II, IT-94-1-T, 14 July 1997, Sentencing Judgment.

³¹⁷ ICTY Prosecutor v Tadic, AC, IT-94-1-A, 15 July 1999, Judgment.

³¹⁸ ICTY Prosecutor v Tadic, TC II, IT-94-1-Tbis-R117, 11 November 1999, Sentencing Judgment.

³¹⁹ ICTY Prosecutor v Tadic, AC, IT-94-1-A and IT-94-1-Abis, 15 July 1999, Judgment in Sentencing Appeals.

³²⁰ N Clark, ‘Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation’, 20 EJIL (2009) 415, 418.

³²¹ Compare eg, J Hatchard, B Huber, and R Vogler, Comparative Criminal Procedure (BIICL 1996) 224-5.

³²² Rule 100 was amended to clarify this case during the 11th Plenary Meeting of the Judges, 25 June 1996. It now contains an explicit reference to cases involving a guilty plea.

³²³ ICTY, Prosecutor v Erdemovic, TC I, IT-96-22-T, 29 November 1996, Sentencing Judgment, para 10-14.

³²⁴ ICTY Prosecutor v Erdemovic, AC, IT-96-22-A, 7 October 1997.

³²⁵ ICTY Prosecutor v Erdemovic, TC II, IT-96-22-T, 5 March 1998, para 23. For a more detailed description see Boas/Bischoff/Reid/Taylor, ICL III, 216-21.

³²⁶ 14th Plenary Session on 12 November 1997.

³²⁷ Boas/Bischoff/Reid/Taylor, ICL III, 225.

³²⁸ See C Safferling, Towards an International Criminal Procedure (OUP 2003) 276.

³²⁹ For a short history of plea-bargaining and the ideological underpinnings see: N Amoury Combs, ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’, 151 U Pa L Rev (2002) 1, 12 et subs., 50 et subs.

³³⁰ See for the differentiation between charge and sentence bargaining: R Pati, ‘The ICC and the Case of Sudan’s Omar Al Bashir: Is Plea Bargaining a Valid Option?’, 15 UC Davis J Int’l L and Pol’y (2009) 265, 282 et subs. with further references.

³³¹ Charge bargaining was first accepted in the case ICTY Prosecutor v Plavšic, IT-00-39 and 40-PT, 7 March 2002, Amended Consolidated Indictment; and Prosecutor v Plavšic, TC, IT-00-39 and40/1-S, 20 December 2002, Decision Granting Prosecution’s Motion to Dismiss Counts 1, 2, 4, 5, 6, 7, and 8 of the Amended Consolidated Indictment. The only charge which remained was one of persecution as a crime against humanity; the other counts of genocide and crimes against humanity were dropped.

³³² See A Zahar and G Sluiter, International Criminal Law (OUP 2007) 42.

³³³ It was ruled out by the former President A Cassese as not admitted by the ICTY’s law prior to this amendment, see V Morris and M P Scharf, An Insider’s Guide to the ICTY (1995) ii, 649, 652.

³³⁴ See for a more detailed description of Rule 62bis: Boas/Bischoff/Reid/Taylor, ICL III, 221-4.

³³⁵ R Henham and M Drumbl, ‘Plea Bargaining at the International Criminal Tribunal for the Former Yugoslavia’, 16 CLF (2005) 53.

³³⁶ N Jørgensen, ‘The Genocide Acquittal in the Sikirica Case before the International Criminal Tribunal for the Former Yugoslavia and the Coming of Age of the Guilty Plea’, 15 LJIL (2002) 407.

³³⁷ See Triffterer/Guariglia/Hochmayr, Art. 65 MN 13.

³³⁸ M P Scharf, ‘Trading Justice for Efficiency: Plea-Bargaining and International Tribunals’, 2 JICJ (2004) 1070, 1074.

³³⁹ This has been generally accepted by ICTR Prosecutor v Kambanda, AC, ICTR-97-23-A, 19 October 2000, Judgment, para 120, 122, 126.

³⁴⁰ ICTY Prosecutor v Nikolic, TC, IT-94-2-S, 18 December 2003, Sentencing Judgment; see also: N Clark, ‘Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation’, 20 EJIL (2009) 415 and R Henham, ‘Plea Bargaining and the Legitimacy of International Trial Justice: Some Observations on the Dragan Nikolic Sentencing Judgment of the ICTY’, 5 ICLR (2005) 601.

³⁴¹ ICTY Prosecutor v Deronjic, TC II, IT-02-61-S, 30 March 2004, Sentencing Judgment, para 236. Very critical in this regard the dissenting opinion of Judge Schomburg.

³⁴² This was admitted by the Trial Chamber II: ICTY Prosecutor v Nikolic, TC, IT-94-2-S, 18 December 2003, Sentencing Judgment, para 122.

³⁴³ As for the US4 criminal justice system and the role of plea bargaining, see US Supreme Court Santobello v New York, 404 US 257, 260 (1971).

³⁴⁴ N Amoury Combs, ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’, 151 U Pa L Rev (2002) 1 analysing the national context and comparing it to the international level. See also A Petrig, ‘Negotiated Justice and the Goals of International Criminal Tribunals’, 8 Chi-Kent J Int’l & Comp L (2008) 1, 19 et subs analysing the duty to prosecute on the international level; see also R Pati, ‘The ICC and the Case of Sudan’s Omar Al Bashir: Is Plea Bargaining a Valid Option?’, 15 UC Davis J Int’l L & Pol’y (2009) 265, 322.

³⁴⁵ A Petrig, ‘Negotiated Justice and the Goals of International Criminal Tribunals’, 8 Chi-Kent J Int’l & Comp L (2008) 1, 29 et subs.

³⁴⁶ See M P Scharf, ‘Trading Justice for Efficiency: Plea-Bargaining and International Tribunals’, 2 JICJ (2004) 1070, 1080; also: M Bohlander, ‘Plea-Bargaining before the ICTY’, in: R May et al. (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (Kluwer 2001) 151, 159.

³⁴⁷ Indeed, as has been rightly pointed out, the wording of Art. 65 (5) presupposes the existence of such negotiations, see Triffterer/Guariglia/Hochmayr, Art. 65 MN 40.

³⁴⁸ This is rightly stressed by Boas/Bischoff/Reid/Taylor, ICL III, 226 et subs.

³⁴⁹ See Chapter 2, p 131 et subs.

³⁵⁰ See M Bohlander, ‘Plea-Bargaining before the ICTY’, in: R May et al. (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (Kluwer 2001) 151, 157.

³⁵¹ This realistic danger is described by R Pati, ‘The ICC and the Case of Sudan’s Omar Al Bashir: Is Plea Bargaining a Valid Option?’, 15 UC Davis J Int’l L & Pol’y (2009) 265—the author sees plea bargaining as not an ‘insurmountably great injustice’ at the ICC.

³⁵² Argued by Boas/Bischoff/Reid/Taylor, ICL III, 214.

³⁵³ The problems of the plea bargaining for the victims have been stressed by: R Pati, ‘The ICC and the Case of Sudan’s Omar Al Bashir: Is Plea Bargaining a Valid Option?’, 15 UC Davis J Int’l L & Pol’y (2009) 265, 287.

³⁵⁴ As did the ICTY Prosecutor v Todorovic, TC, IT-95-9/1-S, 31 July 2001, Judgment, para 70.

³⁵⁵ See p 420 et subs., concerning the preparation stage.

³⁵⁶ Ahlbrecht/Kirsch, MN 1371, who argues in favour of a swift clarification of the many questions arising out of this openness.

³⁵⁷ See Triffterer/Guariglia/Hochmayr, Art. 65 MN 15 et subs.

³⁵⁸ See again ibid, Art. 65 MN 16.

³⁵⁹ Ibid.

³⁶⁰ See Boas/Bischoff/Reid/Taylor, ICL III, 226.

³⁶¹ Triffterer/Guariglia/Hochmayr, Art. 65 MN 25.

³⁶² Ibid.

³⁶³ See Boas/Bischoff/Reid/Taylor, ICL III, 225 et subs.

³⁶⁴ Ahlbrecht/Kirsch, MN 1426.

³⁶⁵ See Chapter 5 B.

³⁶⁶ The language of Art. 65 (1) (c) (ii) ICCSt speaks of material which ‘supplements’ the charge instead of ‘support’. This differentiation in wording should not be given much attention; see Triffterer/Guariglia/Hochmayr, Art. 65 MN 29.

³⁶⁷ The wording of the Statute is clear in this regards; see again Triffterer/Guariglia/Hochmayr, Art. 65 MN 29.

³⁶⁸ Triffterer/Guariglia/Hochmayr, Art. 65 MN 36. A previous draft used the word ‘shall’ instead of ‘may’. It was thus the intention of the drafter to leave this decision in the discretion of the Trial Chamber.

³⁶⁹ Argued by Triffterer/Guariglia/Hochmayr, Art. 65 MN 37.

³⁷⁰ Under these circumstances it seems odd that the victims are not invited to present their views as they are not mentioned in Rule 139 (1) RPE ICC. If victims’ interests and participation is been taken serious, the victims’ representatives should be heard according to the general rule of Art. 68 (3) ICCSt.

³⁷¹ A Petrig, ‘Negotiated Justice and the Goals of International Criminal Tribunals’, 8 Chi-Kent J Int’l & Comp L (2008) 1, 23 et subs., analysing the victims interests with a view to a guilty plea.

³⁷² Triffterer/Guariglia/Hochmayr, Art. 65 MN 38.

³⁷³ See Chapter 5 E.

³⁷⁴ See Triffterer/Guariglia/Hochmayr, Art. 65 MN 32.

³⁷⁵ Ibid, Art. 65 MN 33.

³⁷⁶ On example can be found at ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-1665, 20 November 2009, Direction for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, by Presiding Judge Bruno Cotte.

³⁷⁷ See Rule 84 RPE ICTY.

³⁷⁸ See Rule 85 RPE ICTY.

³⁷⁹ See Rule 86 RPE ICTY.

³⁸⁰ See J Sprack, Criminal Procedure (12th edn, OUP 2008) 20.48-55.

³⁸¹ ICTY Prosecutor v Oric, TC, IT-03-68-T, 8 June 2005, Trial Transcript, p 9032-33; Prosecutor v Sikirica, Došen and Kolundžija, TC, IT-95-8-T, 3 September 2001, Judgment on Defence Motions to Acquit, para 172; Prosecutor v Kordic and Cerkez, TC, IT-95-14/2-T, 6 April 2000, Decision on Defence Motions for Judgment of Acquittal. In all cases the accused persons were acquitted for some charges whereas other allegations were upheld and the trial continued on this limited number of charges.

³⁸² P Robinson, ‘Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY’, 3 JICJ (2005) 1037, 1046 et subs.

³⁸³ ICTY Prosecutor v Delalic et al., AC, IT-96-21-A, 20 February 2001, Judgment, para 434.

³⁸⁴ ICTY Prosecutor v Jelisic, AC, IT-95-10-A, 5 July 2001, Judgment, para 37 (emphasis in original).

³⁸⁵ See Boas/Bischoff/Reid/Taylor, ICL III, 289 with particular attention to the different wording used regarding ‘charge’ or ‘count’.

³⁸⁶ See K Khan and R Dixon (eds), Archbold International Criminal Courts: Practice, Procedure and Evidence (3rd edn, Sweet and Maxwell Ltd 2009) 8-80. A different view is allegedly taken by Boas/Bischoff/Reid/Taylor, ICL III, 288.

³⁸⁷ See p 438 et subs., and p 461 et subs. Compare Boas/Bischoff/Reid/Taylor, ICL III, 287.

³⁸⁸ 3 BGHSt 281: this separation is mandatory.

³⁸⁹ 38 BVerfGE 105.

³⁹⁰ See 3 BGHSt 281, 284.

³⁹¹ See L Meyer-Goßner, Strafprozessordnung (54th edn, CH Beck 2011) § 240 MN 3.

³⁹² K Volk, Grundkurs StPO (7th edn, CH Beck 2008) § 21 MN 19.

³⁹³ L Meyer-Goßner, Strafprozessordnung (54th edn, CH Beck 2011) § 240 MN 1.

³⁹⁴ Ibid, § 239 MN 1; K Volk, Grundkurs StPO (7th edn, CH Beck 2008) § 21 MN 19.

³⁹⁵ See eg, C Roxin/B Schünemann, Strafverfahrensrecht: Ein Studienbuch (26th edn, CH Beck 2009) § 44 MN 24.

³⁹⁶ L Meyer-Goßner, Strafprozessordnung (54th edn, CH Beck 2011) § 239 MN 1.

³⁹⁷ Ibid, § 239 MN 2.

³⁹⁸ See 10 BGHSt 8, 10.

³⁹⁹ See p 287 et subs.

⁴⁰⁰ K Volk, Grundkurs StPO (7th edn, CH Beck 2008) § 21 MN 1.

⁴⁰¹ Wigmore, quoted by Lidstone in J A Andrews (ed), Human Rights in Criminal Procedure: A Comparative Study (Brill 1982) 93.

⁴⁰² US Supreme Court Alford v US 282 US 687 (1931).

⁴⁰³ S/he is not allowed to give his/her testimony from the ‘dock’, but must be seated in the ‘witness box’, see Farnham Justices ex parte Gibson [1991] Crim LR 642.

⁴⁰⁴ J Sprack, A Practical Approach to Criminal Procedure (12th edn, OUP 2008) 20.58-59.

⁴⁰⁵ See W R Harris, Murder by the Millions. Rudolf Hoess at Auschwitz (Robert H Jackson Center 2005).

⁴⁰⁶ IMT Protocols XI, 396 et subs.

⁴⁰⁷ Ibid, 414 et subs.; see also W Harris, ‘Tyranny on Trial’, in: H Reginbogin and C Safferling (eds), The Nuremberg Trials: International Criminal Law since 1945 (Saur 2006) 100, 102.

⁴⁰⁸ C Safferling, ‘German Participation in the Nuremberg Trials and its Implications for Today’, in: B A Griech-Polelle (ed), The Nuremberg War Crimes Trial and its Policy Consequences for Today (Nomos 2009) 33-43.

⁴⁰⁹ See Jackson Report (1949) XI.

⁴¹⁰ See C Safferling and P Graebke, ‘Strafverteidigung im Nürnberger Hauptkriegsverbrecherprozess: Strategien und Wirkungen’, 123 ZStW (2011) 47, 63 et subs.

⁴¹¹ See IMT Protocols IX, 567 et subs.

⁴¹² Ibid, 563 et subs.

⁴¹³ K Kastner, Von den Siegern zur Rechenschaft Gezogen (Hoffmann 2001) 139; W Harris, ‘Tyranny on Trial’, in: H Reginbogin and C Safferling (eds), The Nuremberg Trials: International Criminal Law since 1945 (Saur 2006) 100, 102.

⁴¹⁴ C Safferling and P Graebke, ‘Strafverteidigung im Nürnberger Hauptkriegsverbrecherprozess: Strategien und Wirkungen’, 123 ZStW (2011) 47, 70.

⁴¹⁵ See also Chapter 1, p 54 et subs.

⁴¹⁶ E M DiPardo, ‘Caught in a Web of Lies: Use of Prior Inconsistent Statements to Impeach Witnesses before the ICTY’, 31 Boston College International and Comparative Law Review (2008) 277, 284 et subs. (arguing in favour of a solution similar to the US Federal Rule of Evidence 613 and the rule developed by the Supreme Court in Harris v New York, 401 US 222, 224 [1971]).

⁴¹⁷ See eg, ICTY Prosecutor v Mrkšic, TC II, IT-95-13/1-T, 9 October 2006, Decision Concerning the Use of Statements Given by the Accused, para 30 (in this case prior statements of the accused were admitted).

⁴¹⁸ As has happened in the case ICTY Prosecutor v Simic et al, TC II, IT-95-9-T, 11 March 2011, Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews. In this case the Prosecutor intended to rely on telephone interviews which were conducted with one defendant, who at the time was not aware of the charges against him.

⁴¹⁹ G Boas, ‘Developments in the Law of Procedure and Evidence at the ICTY and the ICC’, 12 CLF (2001) 167, 175.

⁴²⁰ See for some examples, V Tochilovsky, Jurisprudence of the International Criminal Courts (Wolf Legal Publishers 2006) 225.

⁴²¹ S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’, 2 JICJ (2004), 526, 530 et subs.

⁴²² See ICTY Prosecutor v Stakic, TC II, IT-97-24-PT, 25 November 2002, Trial Transcript, available at <http://www.icty.org/x/cases/stakic/trans/en/021125ED.htm>.

⁴²³ See ICTR Prosecutor v Bagosora et al., TCI, ICTR-98-41-T, 11 January 2005, Decision on Motion to Compel Accused to Testify Prior to Other Defence Witnesses, para 5; ICTY Prosecutor v Kordic and Cerkez, TC III, IT-95-1412-PT, 9 March 1999, Decision on Prosecutor’s Motion on Trial Procedure, p. 4.

⁴²⁴ See ICTY Prosecutor v Delalic et al., TCII, IT-96-21-T, 1 May 1997, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landzo, para 22.

⁴²⁵ See Judge Schomburg: ICTY Prosecutor v Stakic, TC II, IT-97-24-PT, 25 November 2002, Trial Transcript, available at <http://www.icty.org/x/cases/stakic/trans/en/021125ED.htm>.

⁴²⁶ See also Triffterer/Schabas, Art. 67 MN 48 et subs.

⁴²⁷ See p 563 et subs.

⁴²⁸ Compare p 54 et subs.

⁴²⁹ R Karemaker, B Don Taylor, and T W Pittman, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’, 21 LJIL (2008) 683, 685 et subs.; W Jordash, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’, 22 LJIL (2009) 501, 503 et subs.

⁴³⁰ ICTY Prosecutor v Limaj et al., TC II, IT-03-66-T, 10 December 2004, Decision on Defence Motion on Prosecution Practice of ‘Proofing’ Witnesses, para 2-3.

⁴³¹ ICTY Prosecutor v Milutinovic et al., TC III, IT-05-87-T, 12 December 2006, Decision on Ojdanic Motion to Prohibit Witness Proofing, para 16; similarly ICTR Prosecutor v Karemera et al., TC III, ICTR-98-44-T, 15 December 2006, Decision on Defence Motions to Prohibit Witness Proofing, para 11 et subs.

⁴³² In greater detail: W Jordash, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’, 22 LJIL (2009) 501, 509 et subs.

⁴³³ Prosecution Response to Haradinaj Submissions on the Procedure for the Proofing of Prosecution Witnesses, 21 March 2007, paras 22, 44 and the Guidelines in the Annex.

⁴³⁴ ICC Prosecutor v Lubanga, PTC I, ICC-01/04-01/06-679, 8 November 2006, Decision on the Practices of Witness Familiarisation and Witness Proofing.

⁴³⁵ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1049, 30 November 2007, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial.

⁴³⁶ Ibid, para 34.

⁴³⁷ Ibid, para 45.

⁴³⁸ Ibid, para 51. It has been argued that misuse can be prevented by rules of professional conduct, see Boas/Bischoff/Reid/Taylor, ICL III, 286 et subs.

⁴³⁹ See ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1049, 30 November 2007, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, para 53-7.

⁴⁴⁰ W Jordash, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’, 22 LJIL (2009) 501, 520 et subs. (a step in the right direction).

⁴⁴¹ See also K Ambos, ‘ “Witness Proofing” before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’, 21 LJIL (2008) 911, 912.

⁴⁴² W Jordash, ‘The Practice of “Witness Proofing” in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice’, 22 LJIL (2009) 501, 523.

⁴⁴³ In greater detail as to the arguments brought forward, see R Karemaker, B Don Taylor, T W Pittman, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’, 21 LJIL (2008) 683, 689.

⁴⁴⁴ This cathartic effect is also doubtful as has been argued by Ambos, see K Ambos, ‘ “Witness Proofing” before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’, 21 LJIL (2008) 911, 915 et subs. with further references.

⁴⁴⁵ As to the controlling effect of cross-examination in this regard, see R Karemaker, B Don Taylor, and T W Pittman, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’, 21 LJIL (2008) 683, 695 et subs.

⁴⁴⁶ See p 419 and Rule 140 RPE ICC. This has allegedly been overlooked by R Karemaker, B Don Taylor, and T W Pittman, ‘Witness Proofing in International Criminal Tribunals: Response to Ambos’, 21 LJIL (2008) 917, 918.

⁴⁴⁷ See also P Robinson, ‘Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY’, 3 JICJ (2005) 1037, 1057.

⁴⁴⁸ An analysis of how this is being done in Germany in English language is available by: F Streng, ‘Sentencing in Germany—Basic Questions and New Developments’, 8 GLJ (2007) 153-72.

⁴⁴⁹ I Hühnerbein, Die Straftatenkonkurrenz im Völkerstrafrecht (Duncker and Humblot 2005); F Melloh, Einheitliche Strafzumessung in den Rechtsquellen des ICC-Statuts (Duncker and Humblot 2010); J Nemitz, Strafzumessung im Völkerstrafrecht (Nomos 2002); id, ‘Sentencing in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, in: H Fischer, C Kreß, and S R Lüder (eds), International and National Prosecution of Crimes under International Law: Current Developments (Berlin Verlag 2001) 605.

⁴⁵⁰ See ICTY Prosecutor v Erdemovic, TC 1, IT-96-22-T, 29 November 1996, Sentencing Judgment, para 40 stating that the reference to the practice in the former Yugoslavia actually meant a reflection of general principles of law.

⁴⁵¹ See also C Safferling, Towards an International Criminal Procedure (OUP 2003) 315.

⁴⁵² See also Boas/Bischoff/Reid/Taylor, ICL III, 290 et subs.

⁴⁵³ See Triffterer/Schabas, Art. 76 MN 3 et subs., who argues that a separate hearing may strengthen the ‘right to silence’ of the accused during trial.

⁴⁵⁴ For a further discussion as to the substantive law see C Safferling, Internationales Strafrecht (Springer 2011) § 5 MN 115 et subs.

⁴⁵⁵ Triffterer/Schabas, Art. 76 MN 8.

⁴⁵⁶ See Boas/Bischoff/Reid/Taylor, ICL III, 291.

⁴⁵⁷ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 24.

⁴⁵⁸ See Chapter 8, p 400.

⁴⁵⁹ C Safferling, Towards an International Criminal Procedure (OUP 2003) 283 et subs.; see also Chapter 8, p 453.

⁴⁶⁰ Discussed later on in detail, Chapter 8, p 477.

⁴⁶¹ ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 22 March 2002, Decision on ‘Motion to Declare Rule 90 (H) (ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal’ by the Accused Radoslav Brdanin and on ‘Rule 90 (H) (ii) Submissions’ by the Accused Momir Talic, para 12.

⁴⁶² ICTR Prosecutor v Nyiramasuhuko et al. (Kanyabashi and Nsabimana), TC II, IT-98-42-T, 28 October 2008, Decision on Kanyabashi’s and Nsabimana’s Motions to Cross-examine Prosecution Witness QA on Additional Topics, para 25.

⁴⁶³ See Chapter 8, p 516.

⁴⁶⁴ The exact wording can be found in Rule 66 (1) RPE ICC: ‘I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.’

⁴⁶⁵ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-T-110-ENG, 28 January 2009, Transcript, p 2.

⁴⁶⁶ ICTY Prosecutor v Karadžic, IT-95-5/18-1, 29 June 2011, OTP Witness Information.

⁴⁶⁷ ICC Prosecutor v Bemba, AC, ICC-01/05-01/08-1386, 3 May 2011, Judgment on the Appeals of Mr. Jean-Pierre Bemba Gombo and the Prosecutor against the Decision of Trial Chamber III entitled ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence’, para 76.

⁴⁶⁸ ICC Prosecutor v Katanga and Chui, TC II, 25 May 2011, ICC-01/04-01/07-2954, Decision on Defence Request to Admit into Evidence Entirety of Document DRC-OTP-1017.0572, para 4.

⁴⁶⁹ In the first version of the Rules of Procedure and Evidence of the ICTY in 1994, Rule 90 (A) RPE ICTY read in the following way: ‘Witnesses shall, in principle, be heard directly by the Chambers.’ This provision was abolished in the version of 19 January 2001.

⁴⁷⁰ Listing several protection measures which the Court can apply to safeguard witnesses if their life or security is endangered, C Safferling, Towards an International Criminal Procedure (OUP 2003) 279 et subs.

⁴⁷¹ ICTY Prosecutor v Karadžic, TC, IT-95-5/18-T, 22 July 2010, Decision on Prosecution’s Motion for Testimony to be Heard via Video-conference Link, para 6.

⁴⁷² Khan/Buismann/Gosnell/Rohan, 533 et subs.

⁴⁷³ To the privileges granted by some professional groups see Chapter 8, p 506.

⁴⁷⁴ See Chapter 10, p 567.

⁴⁷⁵ See ICTY Prosecutor v Halilovic, AC, IT-01-48-AR73, 21 June 2004, Decision on the Issuance of Subpoenas, para 7 and ICTY Prosecutor v Miloševic, TC, IT-02-54-T, 9 December 2005, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schröder, para 41.

⁴⁷⁶ For further information on the practice of the ad hoc Tribunals in dealing with this issue, see Khan/Buismann/Gosnell/Azarnia 582 et subs.

⁴⁷⁷ See Chapter 6, p 287.

⁴⁷⁸ ICTY Prosecutor v Limaj, Bala and Musliu, TCII, IT-03-66-T, 30 November 2005, Judgment, para 22, see also ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties during Trial Proceedings, para 5.

⁴⁷⁹ ICTY Prosecutor v Limaj, Bala and Musliu, TCII, IT-03-66-T, 30 November 2005, Judgment, para 22.

⁴⁸⁰ See Chapter 8, p 456.

⁴⁸¹ Triffterer/Schabas, Art. 67 MN 48.

⁴⁸² ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motion, para 61 et subs.

⁴⁸³ ICTY Prosecutor v Halilovic, TC I, IT-01-48-T, 8 July 2005, Decision on Motion for Exclusion of Statement of Accused, para 24 et subs. For further information see S Luzzati, ‘On the Admissibility of Statements Made by the Defendant Prior to Trial’, 8 JICJ (2010) 221, 224 et subs.

⁴⁸⁴ In detail see Chapter 10.

⁴⁸⁵ ICC Prosecutor v Lubanga, TCI, ICC-01/04-01/06-T-113-ENG, 30 January 2009, Transcript, p 9.

⁴⁸⁶ Khan/Buisman/Gosnell/Rohan 526.

⁴⁸⁷ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-T-113-ENG, 30 January 2009, Transcript, p 9.

⁴⁸⁸ See disclosure, Chapter 7, p 344.

⁴⁸⁹ For more details on privileges see Chapter 8, p 510.

⁴⁹⁰ See Chapter 7, p 350.

⁴⁹¹ ICTY Prosecutor v Galic, TC, IT-98-29-T, 3 July 2002, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, p 2 et subs.

⁴⁹² ICTR Prosecutor v Akayesu, TC I, ICTR-96-4-T, 9 March 1998, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, p 1.

⁴⁹³ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-1515, 9 October 2009, Decision on the Disclosure of Evidentiary Material Relating to the Prosecutor’s Site Visit to Bogoro on 28, 29 and 31 March 2009 (ICC-01/04-01/07-1305, 1345, 1360, 1401, 1412 and 1456), para 3.

⁴⁹⁴ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1069, 10 December 2007, Decision on the Procedure to be Adopted for Instructing Expert Witnesses, para 16.

⁴⁹⁵ Ibid, para 14.

⁴⁹⁶ ICTY Prosecutor v Miloševic, TC, IT-02-T, 1 March 2006, Decision on the Admissibility of Expert Report of Kosta Cavoski, p 2; the Trial Chamber ruled that the defence expert witness ‘is at least as relevant to the proceedings as Professor Budding’s expert report’.

⁴⁹⁷ ICTY Prosecutor v Galic, TC, IT-98-29-T, 3 July 2002, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, p 2.

⁴⁹⁸ ICTY Prosecutor v Popovic et al., AC, IT-05-88-AR73.2, 30 January 2008, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, para 29.

⁴⁹⁹ ICTY Prosecutor v Stanišic and Župljanin, TC II, IT-08-91-T, 29 September 2010, Decision Pursuant to Rule 94bis Accepting Ewan Brown and Affirming Ewa Tabeau as Prosecution Expert Witnesses, and Written Reasons for the Oral Ruling Accepting Andreas Riedlmayer as an Expert Witness, para 10.

⁵⁰⁰ Ibid, paras 10 and 12; and ICTY Prosecutor v Miloševic, TC, IT-02-54-T, 1 March 2006, Decision on Admissibility of Expert Report of Kosta Cavoski, p 2.

⁵⁰¹ During the trial against a Rwandan citizen charged with genocide before the Higher Regional Court of Frankfurt, the Court challenged one of the proposed expert witnesses for bias due to close contact between the expert and the accused and his family, pursuant to §§ 74 (1), 24 (2) German Code of Criminal Procedure.; see International Research and Documentation Centre War Crimes Trials, Monitoring Report 2, 9 February 2011, p 5 available at <http://www.uni-marburg.de/icwc/monitoring/monitoringolgfrankfurt>.

⁵⁰² ICTR Prosecutor v Akayesu, TC, ICTR-96-4-T, 9 March 1998, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, p 2 (emphasis added).

⁵⁰³ ICTY Prosecutor v Karadžic, TC, IT-95/5/18-T, 14 June 2011, Decision on Accused’s Request for Assistance of Defence Expert in the Courtroom During Testimony of Expert Witness Theunens, para 4.

⁵⁰⁴ If it cannot complied with the time limit, fixed by the Chamber, the party concerned has to justify the delay; ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-1515, 9 October 2009, Decision on the Disclosure of Evidentiary Material Relating to the Prosecutor’s Site Visit to Bogoro on 28, 29 and 31 March 2009 (ICC-01/04-01/07-1305, 1345, 1360, 1401, 1412 and 1456), para 4.

⁵⁰⁵ See Chapter 8, p 481.

⁵⁰⁶ See Chapter 8, p 495.

⁵⁰⁷ ICTR Prosecutor v Musema, TC, ICTR-l96-13-A, 27 January 2000, Judgment, para 53.

⁵⁰⁸ § 149 (1) Austrian Code of Criminal Procedure.

⁵⁰⁹ C Safferling and P Graebke, ‘Strafverteidigung im Nürnberger Hauptkriegsverbrecherprozess: Strategien und Wirkung’, 123 ZStW 47, 58 et subs. and 74.

⁵¹⁰ ICTY Prosecutor v Karadžic, TC, IT-95-5/18-T, 10 November 2009, Decision on Prosecution’s First Motion for Admission of Statements and Transcripts into Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92bis (Witnesses for Eleven Municipalities), para 5.

⁵¹¹ Ibid.

⁵¹² The Trial Chamber decided in Lubanga that primary school records are ‘created contemporaneously to the events the record (viz. the enrolment of students)’ and therefore, ‘are, prima facie, probative of the issue just described’; ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2595-Red, 17 November 2010, Redacted Decision on the Defence Request for the Admission of 422 Documents, para 70.

⁵¹³ Rule 89 was amended to speed up the proceedings before the ICTY. See, for the relationship between the above-mentioned rules, O Kwon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’, 5 JICJ (2007) 360, 365 et subs., supporting the implementation of the opportunity also to accept written statements and transcripts as evidence.

⁵¹⁴ See eg, ICTY Prosecutor v Karadžic, TC, IT-95-5/18-T, 10 November 2009, Decision on Prosecution’s First Motion for Admission of Statements and Transcripts into Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92bis (Witnesses for Eleven Municipalities).

⁵¹⁵ ICTY Prosecutor v Karadžic, TC, IT-95-5/18-PT, 15 October 2009, Decision on Prosecution’s Third Motion for Admission of Statements and Transcripts of Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92bis (Witnesses for Sarajevo Municipality), para 7.

⁵¹⁶ Opposing this discretionary power of the Chamber, P Robinson, ‘Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY’, 3 JICJ (2005) 1037, 1044 et subs.

⁵¹⁷ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07, 16 November 2009, Prosecution’s Consolidated Response to ‘Defence Objections to Admissibility in Principal and in Substance’ (ICC-01/04-01/07-1558) and ‘Requête de la Défense en vue d’obtenir une décision d’irrecevabilité des documents liés aux témoins décédés référencés sous les numéros T-167 et T-258’ (ICC-01/04-01/07-1556), para 19 et subs.

⁵¹⁸ Front Nationalistes et Intégrationnistes.

⁵¹⁹ Force de Résistance Patriotique en Ituri.

⁵²⁰ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07, 16 November 2009, Prosecution’s Consolidated Response to ‘Defence Objections to Admissibility in Principal and in Substance’ (ICC-01/04-01/07-1558) and ‘Requête de la Défense en vue d’obtenir une décision d’irrecevabilité des documents liés aux témoins décédés référencés sous les numéros T-167 et T-258’ (ICC-01/04-01/07-1556), para 20 et subs.

⁵²¹ ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-886, 16 September 2010, Decision on the ‘Prosecution Application for Leave to Submit in Writing Prior-Recorded Testimonies by CAR-OTP-WWWW-0032, CAR-OTP-WWWW-0080, and CAR-OTP-WWWW-0108’, para 7; in the case concerned the Trial Chamber III decided that all three witnesses have to testify viva voce because it would be prejudicial to the right of the accused if the defence would not have the possibility to examine the witnesses at trial.

⁵²² ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-T-123-Red-ENG, 25 March 2010, Transcript, p 42.

⁵²³ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2664-Red, 16 March 2011, Redacted Decision on the ‘Troisième requête de la Défense aux fins de dépôt de documents’, para 48 et subs.

⁵²⁴ ICTY Prosecutor v Galic, TC, IT-98-29-T, 2 August 2002, Decision on the Admission into Evidence of Written Statement by a Deceased Witness, Hamdija Cavicic, and Related Report Pursuant to Rule 92bis (C).

⁵²⁵ For further information on the development of the guiding principle to hear a witness viva voce to the now prevailing practice of accepting written statements see P Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, 42 Harv Int’l L J (2001) 535-53.

⁵²⁶ ICTY Prosecutor v Katanga and Chui, AC, ICC-01/04-01/07-2954, 25 May 2011, Decision on Defence Request to Admit into Evidence Entirety of Document DRC-OTP-1017-0572, para 6 et subs.

⁵²⁷ ICC Prosecutor v Lubanga, TCI, ICC-01/04-01-06-2727-Red, 28 April 2010, Redacted Decision on the Prosecution’s Application to Admit Rebuttal Evidence from Witness DRC-OTP-WWWW-0005, para 36 et subs.

⁵²⁸ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2403, 24 April 2010, Decision on the ‘Requête de la Défense sollicitant l’autorisation d’interjeter appel de la décision orale du 4 mars 2010 autorisant l’utilisation et le dépôt en preuve de trois photographies’, para 25.

⁵²⁹ Ibid, para 26.

⁵³⁰ See inter alia SCSL Prosecutor v Taylor, TC II, SCSL-03-01-T-865, 30 November 2009, Decision on Prosecution Motion in Relation to the Applicable Legal Standards Governing the use and Admission of Documents by the Prosecution During Cross-examination, para 27.

⁵³¹ ICTY Prosecutor v Popovic et al., AC, IT-05-88-AR73.3, 1 February 2008, Decision on the Appeals against Decision on Impeachment of a Party’s Own Witness, p 10.

⁵³² In Mbarushimana the defence submitted an order of a German court which is now available on the internet. This document is not redacted and may trespass on data privacy regulations. The court should deal with this issue very cautiously because of its possible negative impact on national trials. (ICC Prosecutor v Mbarushimana, Defence, ICC-01/04-01/10-40, 25 January 2011, Supplementary Information in support of the Defence Challenge to the Validity of the Arrest Warrant).

⁵³³ Khan/Buismann/Gosnell/Nerenberg/Timmermann 488.

⁵³⁴ ICC Prosecutor v Lubanga, ICC-01/04-01/06-1454-Anx 1, 11 August 2008; in this letter the UN Headquarters agreed to the disclosure of a list of documents.

⁵³⁵ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2595-Red, 17 November 2010, Redacted Decision on the Defence Request for the Admission of 422 Documents, para 64 and 68 et subs.

⁵³⁶ Khan/Buismann/Gosnell/Singh 619 et subs.

⁵³⁷ ICTY Prosecutor v Stanišic and Župljanin, TC II, IT-08-91-T, 29 September 2010, Decision Pursuant to Rule 94bis Accepting Ewan Brown and Ewa Tabeau as Prosecution Expert Witnesses, and Written Reasons for the Oral Ruling Accepting Andreas Riedlmayer as an Expert Witness, para 11.

⁵³⁸ ICTY Prosecutor v Popovic et al., AC, IT-05-88-AR73.2, 30 January 2008, Decision on Joint Defense Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, para 31.

⁵³⁹ SCSL Prosecutor v Brima et al., TC II, SCSL-04-16-T, 5 August 2005, Decision on Prosecution Request for Leave to Call an Additional Witness (Zainab Hawa Bangura) Pursuant to Rule 73bis (E), and on Joint Defence Notice to Inform the Trial Chamber of its Position vis-à-vis the Proposed Expert Witness (Mrs Bangura) Pursuant to Rule 94bis, para 30; the Chamber clearly pointed out that: ‘all the above concerns regarding the qualification of Mrs Bangura are matters that go to the weight and not admissibility of the evidence, and that can adequately be tested during cross-examination’ (emphasis added).

⁵⁴⁰ ICC Prosecutor v Lubanga, Registry, ICC-01/04-01/06-2025-tENG, 3 July 2009, Redacted version of ‘Submission of Mr Kambayi Bwatshia’s Expert Report’.

⁵⁴¹ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-1515, 7 October 2009, Decision on the Disclosure of Evidentiary Material Relating to the Prosecutor’s Site Visit to Bogoro on 28, 29 and 31 March 2009, para 41 et subs. The Trial Chamber decided that the Ballistic Report could not be added to the list of incriminatory evidence of the Prosecution but rather could be helpful for the defence.

⁵⁴² ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-1515, 7 October 2009, Decision on the Disclosure of Evidentiary Material Relating to the Prosecutor’s Site Visit to Bogoro on 28, 29, and 31 March 2009, para 46 et subs. and para 51 et subs. The expert reports were directed to analysing the blood stains found inside the Institute of Bogoro and the exhumation and autopsy of human remains found in the vicinity of the Institute. According to opinion of Trial Chamber II, the reports comprised information with only low relevance and therefore, could be used only if the significance of the information prevailed over the procedural implications caused by the late disclosure to the defence.

⁵⁴³ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2472-Red, 11 June 2010, Prosecution’s Application for Admission of Documents Related to Witness 297, Pursuant to Article 64(9).

⁵⁴⁴ LG Braunschweig, 30 December 2009, 3 T 1065/08, 3 T 464/09, Migrationsrecht.net (20 November 2010) 40, 43, available at <http://www.migrationsrecht.net>.

⁵⁴⁵ VG Düsseldorf, 21 June 2007, 13 K 6992/04.A, 4 ANA-ZAR (2007) 29 Doc 738.

⁵⁴⁶ M Klinker, ‘Forensic Science Expertise for International Criminal Proceedings: an Old Problem, a New Context and a Pragmatic Resolution’, 13 The International Journal of Evidence & Proof (2009) 102, 112.

⁵⁴⁷ The impeccability of forensic evidence is now a matter of common knowledge, in particular at the national level, eg, see P Giannelli, ‘The Abuse of Scientific Evidence in Criminal Cases: the Need for Independent Crime Laboratories’, 4 Virginia Journal of Social Policy and the Law (1996-1997) 439-78.

⁵⁴⁸ Forensic evidence was the key factor of the conviction of Radislav Krstic, Deputy Commander of the Drina Corps of the Bosnian Serb Army. He was found guilty of aiding and abetting genocide regarding mass-executions in Srebrenica. This would not have been possible without identification of the dead bodies found in mass graves as being the remains of the missing members of the Muslim Population. See also M Klinker, ‘Proving Genocide, Forensic Expertise and the ICTY’, 6 JICJ (2008) 447-66.

⁵⁴⁹ E O’Sullivan and D Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’, 8 JICJ (2010) 511, 519.

⁵⁵⁰ SCSL Prosecutor v Norman et al., AC, SCSL-2004-14-AR73, 16 May 2005, Fofana—Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, para 19.

⁵⁵¹ Boas/Bischoff/Reid/Taylor, ICL III, 365.

⁵⁵² SCSL Prosecutor v Norman et al., AC, SCSL-2004-14-AR73, 16 May 2005, Fofana—Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, Separate Opinion of Judge Robertson, para 5.

⁵⁵³ A similar regulation is provided in Art. 13 (d) Charter of the IMT for the Far East, Art. 21 IMT Statute and Rule 94 (A) RPE ICTY/ICTY/SCSL. In contrast, the ECCC clearly stated that ‘there is no legal basis in the Law on the Establishment of the ECCC or in the Internal Rules for the Chamber to take judicial notice of adjudicated facts or for facts of common knowledge to be applied before the ECCC’; ECCC Prosecutor v Nuon et al., TC, 002/19-09-2007-ECCC/TC, 4 April 2011, Decision on Ieng Sary’s Motions Regarding Judicial Notice of Adjudicated Facts form the Trial 001 and Fact of Common Knowledge being Applied in Case 002, p 3.

⁵⁵⁴ OTP, ‘Informal Expert Paper, Measures Available to the International Criminal Court to Reduce the Length of Proceedings’ (2003), para 114; available at <http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281982/length_of_proceedings.pdf>, (visited 14 November 2011).

⁵⁵⁵ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-747-tENG, 13 November 2008, Order Instructing the Participants and the Registry to Respond the Questions of Trial Chamber II for the Purpose of the Status Conference (article 64 (3)(a) of the Statute), para 11.

⁵⁵⁶ ICTR Prosecutor v Karemera et al., TC III, ICTR-98-44-T, 11 December 2006, Decision on Appeals Chamber Remand of Judicial Notice, para 10.

⁵⁵⁷ US Non-Paper of Rules of Investigation, Procedures and Evidence for the International Criminal Court, 21 August 1995, para 90; available at <http://www.legal-tools.org>.

⁵⁵⁸ OTP, ‘Informal Expert Paper, Measures Available to the International Criminal Court to Reduce the Length of Proceedings’ (2003) para 114; available at <http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281982/length_of_proceedings.pdf>.

⁵⁵⁹ US Non-Paper of Rules of Investigation, Procedures and Evidence for the International Criminal Court, 21 August 1995, para 90; available at <http://www.legal-tools.org>.

⁵⁶⁰ See Chapter 8, p 407.

⁵⁶¹ ICTR Prosecutor v Karemera et al., AC, ICTR-98-44-AR73(C), 16 June 2006, Decision on Prosecutors Interlocutory Appeal of Decision on Judicial Notice, para 23 (emphasis added).

⁵⁶² Ibid, para 35; for further information see R Mamiya, ‘Taking Judicial Notice of Genocide? The Problematic Law and Policy of the Karemera Decision’, 25 Wisconsin International Law Journal (2007) 1-22.

⁵⁶³ SCSL Prosecutor v Norman et al., AC, SCSL-2004-14-AR73, 16 May 2005, Fofana—Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, para 32.

⁵⁶⁴ R Mamiya, ‘Taking Judicial Notice of Genocide? The Problematic Law and Policy of the Karemera Decision’, 25 Wisconsin International Law Journal (2007) 1, 21 et subs.

⁵⁶⁵ OTP, ‘Informal Expert Paper, Measures Available to the International Criminal Court to Reduce the Length of Proceedings’ (2003), para 114; available at <http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-907F631453ED/281982/length_of_proceedings.pdf> .

⁵⁶⁶ S Kirsch, ‘The Trial Proceedings before the ICC’, 6 ICLR (2006) 275, 290; the author takes the view that although there is no provision in the Rome Statute or the Rules of Procedure and Evidence the Chamber has the power to take judicial notice of adjudicated facts and documentary evidence from other proceedings.

⁵⁶⁷ ICTY Prosecutor v Miloševic, AC, IT-02-54-AR73.5, 31 October 2003, Separate Opinion of Judge Shahabuddeen Appended to the Appeals Chamber’s Decision dated 28 October 2003 on the Prosecution’s Interlocutory Appeal against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, para 6.

⁵⁶⁸ ICTY Prosecutor v Miloševic, TC, IT-02-54-T, 16 December 2003, Final Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, para 11.

⁵⁶⁹ In Simic the Trial Chamber noted that the requested adjudicated fact was not an adequate fact to be judicially noticed but proprio motu took judicial notice that Bosnia and Herzegovina proclaimed its independence on 6 March 1992, and the independence was recognized by the European Community and the USA; ICTY Prosecutor v Simic et al., TC, IT-95-9-T, 25 March 1999, 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, p 3.

⁵⁷⁰ Reasoning that the international character of the conflict in Bosnia and Herzegovina is a legal characterization, the Chamber dismissed the motion by the Prosecutor to take judicial notice of this adjudicated fact; ICTY Prosecutor v Simic et al., TC, IT-95-9, 25 March 1999, 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, p 3.

⁵⁷¹ Nsengiyumva filed a motion to request that the Chamber take judicial notice of a fact based on a guilty plea and hence the Chamber dismissed the motion reasoning that ‘facts shall not be deemed “adjudicated” if they are based on guilty plea or admissions voluntarily made by an accused during the proceedings.’ ICTR Prosecutor v Bagosora, AC, ICTR-98-41-A, 29 October 2010, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, para 10.

⁵⁷² ICTY Prosecutor v Popovic et al., TC II, IT-05-08-88-T, 29 September 2006, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, paras 5-14.

⁵⁷³ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2681, 3 February 2011, Decision on Agreements as to Evidence, para 2.

⁵⁷⁴ ICTY Prosecutor v Perišic, TC I, IT-04-81-T, 30 September 2009, Second Decision in Respect of Srebrenica Agreed Facts, p 2.

⁵⁷⁵ Boas/Bischoff/Reid/Taylor, ICL III, 338.

⁵⁷⁶ ICTY Prosecutor v Delalic et al., TC, IT-96-21-T, 19 January 1998, Decision on the Motion of the Prosecution for the Admissibility of Evidence, para 16 and also ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, para 10.

⁵⁷⁷ ICTR Prosecutor v Gatete, TC III, ICTR-2000-61-T, 3 November 2009, Decision on Defence Motion on Admissibility of Allegations Outside the Temporal Jurisdiction of the Tribunal, para 5.

⁵⁷⁸ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-2595-Red-Corr, 8 March 2011, Corrigendum to Redacted Decision on the Defence Request for the Admission of 422 Documents, para 39.

⁵⁷⁹ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 27.

⁵⁸⁰ Ibid, para 28.

⁵⁸¹ Ibid, para 31.

⁵⁸² ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 16.

⁵⁸³ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 23; emphasis added from the correction in Annex A (1399-Corr-AnxA, p 2).

⁵⁸⁴ ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-1022, 19 November 2010, Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence.

⁵⁸⁵ ICC Prosecutor v Bemba, AC, ICC-0/05-01/08-1386, 3 May 2011, Judgment on the Appeals of Mr. Jean-Pierre Bemba Gombo and the Prosecutor against the Decision of Trial Chamber III entitled ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence’, para 2.

⁵⁸⁶ ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-1028, 23 November 2010, Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence, para 4.

⁵⁸⁷ Ibid, para 5.

⁵⁸⁸ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 29.

⁵⁸⁹ ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 11.

⁵⁹⁰ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, para 10.

⁵⁹¹ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 7.

⁵⁹² ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning the Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 5; ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 17.

⁵⁹³ ICTY Prosecutor v Karadžic, TC, IT-95-5/18-T, 18 July 2011, Decision on Prosecution Bar Table Motion for the Admission of Records of Bosnian Serb organs, para 4.

⁵⁹⁴ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 25.

⁵⁹⁵ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 5.

⁵⁹⁶ Ibid.

⁵⁹⁷ Cf. Triffterer/Piragoff Art. 69, MN 37.

⁵⁹⁸ Boas/Bischoff/Reid/Taylor, ICL III, 339 et subs.

⁵⁹⁹ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Motion, para 16.

⁶⁰⁰ Ibid.

⁶⁰¹ ICTR Prosecutor v Gatete, TC III, ICTR-2000-61-T, 3 November 2009, Decision on Defence Motion on Admissibility of Allegations Outside the Temporal Jurisdiction of the Tribunal, para 3.

⁶⁰² ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motion, para 17.

⁶⁰³ ICTY Prosecutor v Delalic et al., TC, IT-96-21, 19 January 1998, Decision on the Motion of the Prosecution for the Admissibility of Evidence, para 20.

⁶⁰⁴ ICTR Prosecutor v Rutaganda, AC, ICTR-96-3-A, 26 May 2003, Judgment, para 382; the Chamber referred in its judgment to ICTR Prosecutor v Akayesu, AC, ICTR-96-4-A, 1 June 2001, Judgment, para 286 et subs.

⁶⁰⁵ ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-1022, 19 November 2010, Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence, para 9.

⁶⁰⁶ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motion, para 27.

⁶⁰⁷ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 28, referring to ICTY Prosecutor v Aleksovski, AC, IT-95-14/1, 16 February 1999, Decision on the Prosecutors Appeal on Admissibility of Evidence, para 15.

⁶⁰⁸ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 5; ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-PT, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 18 et subs.

⁶⁰⁹ ICTY Prosecutor v Delalic et al., TC, IT-96-21-T, 19 January 1998, Decision on the Prosecution’s Oral Request for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused Zdravko Mucic, to Provide a Handwriting Sample, para 32.

⁶¹⁰ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motion, para 34.

⁶¹¹ Ibid, para 13.

⁶¹² ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 41.

⁶¹³ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 30.

⁶¹⁴ ICC Prosecutor v Katanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motion, para 38.

⁶¹⁵ Ibid, para 40.

⁶¹⁶ See Chapter 8, p 489.

⁶¹⁷ See Chapter 1, p 55.

⁶¹⁸ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, para 11; ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 14.

⁶¹⁹ See Chapter 8, p 477, also for the problems concerning implementation of Rule 92bis RPE ICTY/ICTR/SCSL.

⁶²⁰ E O’Sullivan and D Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’, 8 JICJ (2010) 511, 513; G Boas, ‘Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility’, 12 CLF (2001) 41, 55 et subs.

⁶²¹ R May and M Wierda, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Colum J Transnat’l L (1998-1999) 725, 745 et subs.

⁶²² For a narrow analysis of hearsay evidence see C Safferling, Towards an International Criminal Procedure (OUP 2003) 306 et subs.

⁶²³ K Fabian, ‘Proof and Consequences: an Analysis of the Tadic and Akayesu Trials’, 49 DePaul Law Review (2000) 981, 1019. In the USA, a study on the influence of hearsay evidence on jurors was carried out. As a concluding remark, it can be mentioned that jurors are highly sceptical against the admission of hearsay evidence into trial. Hence, the reasoning for excluding hearsay evidence in common law systems seems not to be well founded. M Bull Kovera, R Park, S Penrod, ‘Jurors Perceptions of Eyewitnesses and Hearsay Evidence’, 76 Minnesota Law Review (1991-1992) 703, 704 et subs.

⁶²⁴ B Garner (ed), Black’s Law Dictionary (3rd edn, Thomson West 2006) 327.

⁶²⁵ Criminal Justice Act 2003, Part 11.

⁶²⁶ C Safferling, ‘Verdeckte Ermittler im Strafverfahren—deutsche und europäische Rechtssprechung im Konflikt?’, 26 NStZ (2006) 75.

⁶²⁷ ECtHR Lüdi v Switzerland, Judgment 15 June 1992, Series A No. 238, para 43 et subs.; the ECtHR clearly pointed out that the accused must have the possibility to challenge the witness against him or her, not personally but at least the national court must confront the witness with the allegation brought. In the disputed case the Court showed no intention of questioning the witness, an undercover agent.

⁶²⁸ C Safferling, ‘BVerfG 2 BvR 547/08—Entscheidung der 2. Kammer des 2. Senats vom 8.10.2009’, 30 StV (2010) 337, 340.

⁶²⁹ ECtHR Doorsen v The Netherlands, Judgment 26 March 1996, Rep. 1996-II, para 71.

⁶³⁰ Ibid, para 72.

⁶³¹ Ibid, para 73; no counterbalance to the procedure could be ascertained in ECtHR Kostovski v The Netherlands, Judgment 20 November 1989, Series A No. 166, para 43.

⁶³² ECtHR Windisch v Austria, Judgment 27 September 1990, Series A No. 186, para 24 et subs. and ECtHR AM v Italy, Judgment 14 December 1999, Rep. 1999-IX, para 25.

⁶³³ C Safferling, ‘BVerfG 2 BvR 547/08—Entscheidung der 2. Kammer des 2. Senats vom 8.10.2009’, 7 StV (2010) 337, 340 et subs.

⁶³⁴ ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1399, 13 June 2008, Decision on the Admissibility of Four Documents, para 28.

⁶³⁵ ICTY Prosecutor v Aleksovski, AC, IT-95-14/1, 16 February 1999, Decision on Prosecutors Appeal on Admissibility of Evidence, para 15.

⁶³⁶ ICTY Prosecutor v Kordic and Cerkez, AC, IT-95-14/2, 21 July 2000, Decision on Appeal Regarding Statement of Deceased Witness, para 27.

⁶³⁷ ICTY Prosecutor v Aleksovski, AC, IT-95-14/1, 16 February 1999, Decision on Prosecutors Appeal on Admissibility of Evidence, para 15, and also ICTY Prosecutor v Miloševic, AC, IT-02-54-AR73.2, 30 September 2002, Decision on the Admissibility of Prosecutions Investigator’s Evidence, para 18.

⁶³⁸ ICTY Prosecutor v Aleksovski, AC, IT-95-14/1, 16 February 1999, Decision on Prosecutors Appeal on Admissibility of Evidence, para 15; referred to inter alia in ICTY Prosecutor v Brdanin and Talic, TC II, IT-99-36-T, 15 February 2002, Order on the Standards Governing the Admission of Evidence, para 21, and Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 6.

⁶³⁹ See inter alia ICTR Prosecutor v Bagosora et al., TC I, ICTR-98-41-T, 11 December 2006, Decision on Defence Motion on Admission of Statement of Witness LG-1/U-03 under Rule 92bis, the Chamber only denied admissibility in regard with the part of the statement concerning the acts and conduct of the accused.

⁶⁴⁰ ICTY Prosecutor v Aleksovski, AC, IT-95-14/1, 16 February 1999, Decision on Prosecutors Appeal on Admissibility of Evidence, para 15

⁶⁴¹ ICC Prosecutor v Bemba, AC, ICC-01/05-01/08-1386, 3 May 2011, Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the Decision on Trial Chamber III entitled ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence’, para 74 et subs.

⁶⁴² ICC Prosecutor v Bemba, TC III, ICC-01/05-01/08-1028, 23 November 2010, Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence, para 23 (emphasis added).

⁶⁴³ For an overview of different national legal approaches regarding the exclusionary rule see J Murray, ‘Assessing Allegations: Judicial Evaluation of Testimonial Evidence in International Tribunals’, 10 Chi J Int’l L(2010) 769.

⁶⁴⁴ Triffterer/Piragoff Art. 69 MN 59.

⁶⁴⁵ ICC Prosecutor v Kantanga and Chui, TC II, ICC-01/04-01/07-2635, 17 December 2010, Decision on the Prosecutor’s Bar Table Motions, para 60; for a comprehensive overview of internationally recognized human rights regarding the exclusion of evidence see C Safferling, Towards an International Criminal Procedure (OUP 2003) 309 et subs.

⁶⁴⁶ ECtHR Miailhe v France, Judgment 25 February 1993, Series A No. 256, para 39.

⁶⁴⁷ ICTY Prosecutor v Delalic et al., TC, IT-96-21, 2 September 1997, Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence, para 42.

⁶⁴⁸ ICTY Prosecutor v Oric, TC II, IT-03-68-T, 21 October 2004, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p 8.

⁶⁴⁹ ICTY Prosecutor v Delalic et al., TC, IT-96-21, 9 February 1998, Decision on the Tendering of Prosecution Exhibits 104-8, para 20.

⁶⁵⁰ Ibid, para 21.

⁶⁵¹ ICTY Prosecutor v Brdanin, IT-99-36-T, 3 October 2003, Decision on the Defence ‘Objection to Intercept Evidence’, para 8, reaching to the same finding ICTY Prosecutor v Karadžic, IT-95-5/18-T, 30 September 2010, Decision on the Accused’s Motion to Exclude Intercepted Conversations, para 10.

⁶⁵² ICC Prosecutor v Lubanga, TC I, ICC-01/04-01/06-1981, 24 June 2006, Decision on the Admission of Material from the ‘Bar Table’, para 34.

⁶⁵³ Ibid, para

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8 The Trial

From: International Criminal Procedure

Christoph Safferling

(p. 378) 8 The Trial

A. Principles of the Trial

I. Fair trial

1. Human rights law

2. Tribunals

3. ICC

4. Conclusion

II. Expeditious trial

1. Human rights law

2. Tribunals

3. ICC

Table 8.1 Timeline of Prosecutor v Thomas Lubanga

Table 8.2 Timeline of Prosecutor v Germain Katanga

Table 8.3 Timeline of Prosecutor v Jean-Pierre Bemba Gombo

4. Conclusion

III. Public trial

1. Human rights law

a. Publicizing the decision

b. Publicizing the hearing

2. Tribunals

3. ICC

a. For protection purposes

b. Confidentiality purposes

4. Conclusion

IV. Defendant’s presence at trial

1. Human rights law

2. Tribunals

3. ICC

4. Conclusion

V. Oral trial

1. Human rights law

2. Tribunals

3. ICC

4. Conclusion

VI. Presumption of innocence

1. Human rights law

a. Burden of proof

b. Proof of guilt

c. Conduct of officials

2. Tribunals

3. ICC

a. Onus of proof

b. Standard of proof

c. Conduct of officials

4. Conclusion

VII. The principle of equality of arms

1. Human rights law

2. Tribunals

3. ICC

4. Conclusion

VIII. Immediate trial

1. Human rights law

2. Tribunals

3. ICC

4. Conclusion

B. Preparing for Trial

I. Status conferences

1. Mandatory Status Conference

2. Other Status Conferences

Regulation 54 Status conferences before the Trial Chamber

3. Evaluation

II. Pre-trial motions

III. Record

IV. Joinder and severance

1. Joinder

2. Severance

V. Summary

C. The Structure of the Trial

I. Preliminary issues that may influence structure

1. The two-act system

2. The guilty plea

3. Plea bargaining

II. The structure of the trial at the ICC