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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume II, s.6 International Criminal Proceedings, 28 The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility

Fabricio Guariglia

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
International courts and tribunals, procedure — International criminal law, evidence — Individual criminal responsibility — Witnesses

(p. 1111) 28  The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility

I. Introduction

The Preparatory Commission for the International Criminal Court finished its work on the ICC Draft Rules of Procedure and Evidence on 30 June 2000. The outcome is a set of Draft Rules that still need to be formally adopted by the Assembly of State Parties, once the Statute enters into force. These Rules constitute a significant development in the area of procedural law before international (p. 1112) criminal tribunals, and reflect a perception of the international community as to the requirements for a fair and effective adjudication of criminal responsibility for crimes of international concern.

It is interesting to observe how the development and importance of rules of procedure and evidence has evolved in the context of international criminal law. Criminal proceedings in Nuremberg and Tokyo were governed by rudimentary rules (eleven rules in the former and nine in the latter), and relied heavily on case by case determinations of procedural issues.1 Further, those precedents have been severely questioned on the basis of the lack of predictability and potential for abuse of the adopted provisions.2 The first attempt to adopt a cohesive and comprehensive body of rules of procedure for international criminal trials was undertaken by the judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) when drafting the ICTY Rules of Procedure and Evidence. As one commentator has noted, the adopted Rules were carved from the adversarial common law tradition, for a rather prosaic reason, namely, the timely submission by the United States of a comprehensive set of proposed rules with a commentary at the time the ICTY Rules were to be drafted.3 As of 1 May 2002,4 the ICTY Rules have been amended twenty-three times, as a reaction to the numerous practical problems that the ICTY has encountered while performing its functions. The nature of the amendments further shows that following a particular national model of criminal adjudication in the context of international trials is limiting, and fails to provide an international tribunal with the necessary tools to effectively perform its function.5

In this article I propose to discuss briefly the recently adopted draft Rules of Procedure and Evidence for the International Criminal Court and analyse some of their most significant features. For those purposes, I will first address some basic differences between the ICTY Rules and ICC Rules, namely, the degree of regulation contained in the procedural principles and provisions that govern criminal proceedings in both tribunals (Section II), and the different methods of adoption and amendment of Rules of Procedure and Evidence (Section III). Finally, after (p. 1113) some preliminary conclusions (Section IV), I will attempt an overview of some of the core procedural provisions in the ICC Draft Rules (Section V).

II. The Rules of Procedure and Evidence of the International Criminal Court: General Framework

Even a cursory look at the ICC Statute and the Draft Rules of Procedure and Evidence that will presumably be adopted by the Assembly of State Parties suffices to understand the differences between the normative context in which the organs of the ICC will operate and that of its predecessors, notably the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda. Procedures before both ad hoc Tribunals are governed by schematic statutory provisions and by flexible and broad rules of procedure and evidence, that may be amended in plenary sessions by the majority of judges. The ICC proceedings, by contrast, will be regulated by very detailed provisions contained in the Statute itself—therefore subject to a rigid scheme of amendment6—and by similarly detailed provisions in the rules of procedure and evidence, also subject to a stringent regime of amendment (although less stringent than for amendments to the Statute) in the hands of the Assembly of State Parties.

The ICC Statute contains a full procedural scheme: it devotes three of its thirteen Parts to ‘purely’ procedural issues (Part 5, investigation and prosecution; Part 6, trial; Part 8, appeal and review). In addition, extremely relevant procedural provisions may also be found in the parts dealing with the exercise of jurisdiction and the admissibility of a case before the Court (Part 2),7 the composition and administration of the Court (Part 4),8 and international cooperation and judicial assistance (Part 9).9 The original ILC10 Draft, based to a large extent on the ICTY Statute, contained only a few provisions dealing with procedural matters. Delegates found this to be, already at a very early stage of the negotiations, both insufficient and unsatisfactory.11 As a result, lengthy and complex discussions on the core procedural principles that should be reflected in the Statute were undertaken throughout the Preparatory Committee (PrepCom) sessions and in the (p. 1114) Diplomatic Conference. The outcome of those debates, incorporated into the Statute, constitutes ‘an extensive elaboration of and often a substantive departure from the articles of the ILC Draft Statute’.12

This normative picture is completed by the Draft Rules of Procedure and Evidence for the ICC. The Statute itself established that its provisions would be supplemented by a set of Rules of Procedure and Evidence to be adopted by a two-thirds majority of the members of the Assembly of State Parties (Article 51(1) ). The rationale behind this provision is apparent: the Statute could not realistically incorporate the necessary degree of detail to ensure the effective operation of the Court; moreover, it would have been unwise to incorporate in the body of the Statute norms that serve primarily practical purposes (although ultimately the overarching goal is to ensure fair and efficient proceedings), thereby tying the amendment of these rules to the highly rigid scheme of Article 121 of the Statute.13 The Rules will accordingly ‘become a repository for those standards and working methods which only experience will clarify’.14 This supplementary body of law has been completed: after almost two years of negotiations, a Preparatory Commission has completed a set of Draft Rules of Procedure and Evidence15 that will be presented to the Assembly of State Parties once this body is established. Since presumably that body will be composed of representatives of States that have actively participated in those discussions, it is reasonable to expect that the Draft Rules will be adopted without (or without any substantial) amendments.16 The Draft Rules constitute a full-fledged body of procedural provisions that present a remarkable (and sometimes excessive) degree of detail, covering nine parts of the Rome Statute.16a

To summarize, the Rome Statute provides the future organs of the Court with a significant amount of legal material, and already establishes very detailed procedures which are in turn supplemented by the Rules of Procedure and Evidence. As a consequence, the organs of the ICC will operate in a much more rigid legal setting than the one in which the ad hoc Tribunals work. Moreover, amendments to these (p. 1115) procedural principles and provisions will require a positive action by the Assembly of State Parties, either by means of an amendment to the Statute or to the Rules.

III. The Adoption and Amendment of Rules of Procedure and Evidence according to the Rome Statute: The Rejection of the ‘Judge-legislator’

One of the first questions that comes to mind when reading the text of Article 51 of the Rome Statute and the Draft Rules produced by the Preparatory Commission is the apparent rejection of the system adopted in the context of the two ad hoc Tribunals, whereby judges are entrusted with the function of adopting and amending the rules of procedure. Moreover, the level of detail contained in the Draft Rules appears to reflect that the States involved in the negotiations wished to leave as little room as possible for judicial development of procedural rules through the channels provided for in the Statute (legal lacunae17 and supplementary rules or ‘regulations of the Court’, Article 5218). The ICC judges, however, retain the authority to propose amendments to the Rules of Procedure and Evidence, if acting by an absolute majority (Article 51(2)(b) ), but this power, far from being an exclusive attribute, is shared by the Prosecution and any State Party (Article 52(2)(a) and (c) ).

It is the path chosen by the drafters of the Rome Statute vis-à-vis the creation and amendment of Rules of Procedure and Evidence that I intend to discuss briefly in this section, using as a comparative tool the experience of the ICTY. I contend that although the method chosen by the ICC Statute presents significant dangers in terms of the lack of flexibility required to ensure efficient proceedings, it also brings considerable gains in terms of legitimacy, stability, and transparency, which ultimately outweigh those potential dangers. Further, this system must be considered in the ‘consensual’ context in which the ICC will function, due to its treaty-based character and further, to the reliance on broad ratification as the main means to ensure effective exercise of jurisdiction, as implied in the jurisdictional regime of (p. 1116) the Statute.19 Finally, as will be shown below, the unified ‘judge-legislator’ model, despite its tempting simplicity and flexibility, also gives rise to a number of practical problems that affect the proper interpretation and application of the Rules of Procedure and Evidence before international tribunals.

Perhaps the best way to approach these complex issues is to analyse the central areas in which there appear to be clear advantages in a strict separation of the judicial and legislative functions and, conversely, significant problems stemming from a conflation of these functions. These areas are, in my view, the following:

A. Loss or Significant Reduction of the Power-Limiting Function of the Rules of Procedure

Rules of procedure are, in the terminology of H. L. A. Hart, ‘power-conferring rules’.20 As such, they define, inter alia, the preconditions for the valid exercise of an authority, as well as its scope and limits. Accordingly, rules of procedure have an inherent power-limiting function, since they establish when and how legally conferred powers may be validly exercised. Therefore, it may be argued that if the addressees of the rules themselves are the ones entrusted with the task of elaborating and amending the rules, this dimension or function can be significantly diluted.

There is nothing new or revolutionary in this position. As is well known, the separation of judicial and legislative functions was one of the pillars of Enlightenment legal thought.21 The argument could be made that this strict division between the two functions adopted by States pursuant to eighteenth-century revolutionary movements reflected the existing fears towards the abuses of power from an almighty Leviathan, and that those fears should not arise in the context of international tribunals created by the international community. This argument would, generally speaking, be acceptable. However, there is a significant risk that those in charge of adopting and applying the rules succumb, while exercising their legislative function, to the temptation of accommodating the legislation to the practical problems that they have to deal with (which in the context of international criminal jurisdictions are numerous), to an extent that a more detached legislator would not.

(p. 1117) It could also be argued that the Rules are purely ‘procedural’ vis-à-vis the more substantive or ‘legislative’ character of the Statute, and that accordingly the exercise of legislative or quasi-legislative powers by the judges would not pose major problems, since ultimately the judges would only create and amend norms of a lesser importance. Such an argument, however, would overlook the significance of rules of procedure for a fair and objective conduct of criminal proceedings. Criminal procedure has been characterized as a ‘seismograph’ of the Rule of Law.22 On the one hand, its rules provide the required balance between two usually conflicting interests: the public interest expressed through criminal prosecution and the individual interest of the person being prosecuted. On the other, they are the main mechanism to bring into practice the internationally recognized rights that any accused person enjoys during criminal proceedings. For international criminal tribunals, this last aspect or dimension of the rules of procedure is of essential importance, since to a large extent the moral authority of international tribunals to try accused persons derives from the fact that a fair trial is guaranteed to all accused brought before them.23

An example from the ICTY may be useful to illustrate this particular problem. In 1999 the ICTY judges decided to amend the provision regulating disqualification of judges (Rule 15). According to the new formulation of the Rule, a judge that has reviewed an indictment against an accused pursuant to Article 19 of the Statute and Rules 47 or 61, shall not be disqualified from sitting as a member of the Trial Chamber for the trial of the same accused.24 Since amendments to the ICTY Rules are not accompanied by reasons, one can only speculate about the objectives pursued through a particular amendment. However, in this case it seems clear that the amendment was triggered by practical problems arising from the system of rotation of judges that was adopted by the ICTY25 and from the limited number of (p. 1118) available judges.26 While the objective is understandable, it is worth noting that this solution is not uncontroversial in the light of the internationally recognized right of all accused to an impartial tribunal,27 and the jurisprudence of the European Court of Human Rights (ECHR) pertaining to the principle. Pursuant to the objective-approach test adopted by the ECHR, whereas the mere previous intervention in the same case is not in itself sufficient to justify a reasonable fear of prejudice, the particular scope and nature of that intervention can give rise to sufficient doubts as to the impartiality of a judge as to justify disqualification.28 In the event of a Rule 61 confirmation of an indictment, an ICTY judge sitting in the confirming Chamber will substantially delve into the facts of the case, may hear witnesses called by the prosecution, and, if satisfied on the evidence that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, he or she shall so determine.29 Under the new language of Rule 15, this judge would, despite the particular ‘scope and nature’ of his or her prior intervention, be qualified to sit as a member of the Trial Chamber in the same case. The current wording of the Rule must be contrasted against the clear principle contained in Article 41(2)(a) of the ICC Statute, which prescribes that a judge ‘shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted’.30

(p. 1119) B. Reduced Legitimacy of Rules Enacted by Judges

While it is not suggested here that rules adopted by the judges are per se problematic in terms of their legitimacy,31 it is contended that rules adopted by a collective body of external legislators pursuant to open discussions attract an enhanced legitimacy that further fosters compliance with, and respect for, those rules. In the context of the ICC, the Rome Statute was adopted by an overwhelming majority of 120 States out of 160 that attended the conference. Its Draft Rules ofProcedure and Evidence have been adopted by consensus among approximately 120 delegations represented throughout two years of discussions in the Preparatory Commission. While valid criticism has been directed at the real degree of transparency and democracy in international negotiations, and in particular those underlying the Rome Statute,32 there is, nonetheless, a significant difference in terms of perception of legitimacy33 between norms adopted pursuant to relatively open discussions within the international community, with reasons and explanations being provided by the drafters and a record of the process of adoption being established, vis-à-vis norms adopted behind closed doors by a reduced committee of judges.33a

Further, it must be borne in mind that rules of procedure (and the ICC Rules are no exception) contain provisions regulating questions of such importance as the manner in which an individual right may be exercised, or the limits to a valid and justified interference with individual rights, i.e. sensitive political and moral (p. 1120) questions that require, a democratic foundation.34 In this sense, I consider it appropriate to introduce into the discussion at least some of the postulates elaborated by modern political philosophy for the analysis of the democratic process and the legitimacy of its product: (a) deliberations take place in the context of public debates, during which all parties share the same possibilities of making proposals, obtain information, and critically sustain their arguments; (b) all those presumably involved in the consequences of the adopted decisions enjoy equal opportunities of access to, and participation in, the debate; (c) the participants are free of internal or external coercion, and therefore able to freely bring into the discussion new issues, new information or proposals, without the pre-existing distribution of power and resources interfering in the inclusion, exclusion, or distortion of the new contributions; (d) the deliberations aim, in principle, at achieving the broadest consensus among the participants, but, since nothing guarantees that this goal will be reached, deliberations end with a vote, governed by the previously stipulated majority rule.35 The extent to which international multilateral negotiations reflect these postulates is a question that cannot be explored here.36 However, I contend that the system of open collective negotiations is, by definition, closer to these principles than a model of decision-making based on closed and reduced discussions within a committee or board.

This ‘democratic’ path chosen by the ICC Statute for the elaboration of the Rules ofProcedure and Evidence has as an immediate (and welcome) consequence that progressive legal developments adopted in the Rules may be validly considered as an accurate reflection of a firm trend in international thinking, instead of a product of the personal views of judges who are also members of a drafting committee. Perhaps good examples of this are the ICC Draft Rules 70, 71, and 72 dealing with evidence in cases of sexual violence and evidence of prior or subsequent sexual conduct. These rules develop and, in my view, correct the precedent established by ICTY Rule 96.37 The important point, however, is that these rules, elaborated by delegates with the input provided by NGO representatives, and endorsed by all delegations represented in the Preparatory Commission, can be seen as a landmark in this area of law, purporting to establish at least an internationally (p. 1121) accepted minimum standard.38 Relevant and valuable as it was, ICTY Rule 96 lacked this ‘democratic’ foundation.38a

C. Difficulties of Determining the ‘Intention of the Legislator’

In the context of the ICTY, there are no publicly available transcripts of the discussions that take place in the Rules Committee or in the Plenary. Further, the Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the International Tribunal39 establishes that the ‘official document’ setting out the amendments to the Rules will not contain any accompanying commentary or explanation.40

This practice can be easily understood: presumably, the judges do not wish their views and reactions as legislators, dealing with issues such as the consistency of a particular amendment with the Statute, to be publicly known, in order to preserve the integrity and independence of their ‘purely judicial’ functions. The outcome of this practice for the purposes of an accurate interpretation of the Rules, however, is unfortunate: there are no publicly available travaux préparatoires, no record of deliberations, no document whatsoever that may assist an interpreter in his or her quest for the ‘spirit of the legislator’. Since no record is publicly available, the objectives and intentions underlying the Rules must be deduced from the Rules themselves.41

In the context of the ICC, while no travaux préparatoires have been produced to date, there is a considerable amount of material available to the interpreter that (p. 1122) will assist him or her in reconstructing the discussions underpinning the provisions of the Statute and the Rules, such as draft proposals, coordinators’ rolling texts, reports from the different working groups, memoranda and documents from NGOs, and articles written by ‘insiders’ on the negotiation process. Presumably, discussions within the future Assembly of State Parties will be documented in a similar way.

D. Loss or Significant Reduction of the Possibilities of Effective Judicial Review

This problem is the converse of the one described in (A) above. It is mere common sense that if the judges are the legislators, all decisions taken by the legislative body vis-à-vis the consistency of a particular rule or set of rules with the Statute or with international law generally will most likely be the last word on that particular question. In other words, once a rule has been enacted by the judges, the possibilities of effective ex post judicial review by the same persons that have adopted the rule (and accordingly have made at least a strong prima facie decision as to the consistency of that particular rule with the Statute) will ordinarily be reduced. It is interesting to note that the need for external scrutiny of the Rules enacted by the judges was indeed suggested when the discussions around the establishment of the ICTY were taking place within the Security Council. In its presentation to the Security Council, Helsinki Watch stated the following:

Given the importance of the rules in guiding the war crimes tribunal on a fair and just course, Helsinki Watch cannot accept the Security Council’s near-complete abdication of responsibility in drafting rules of evidence and procedure. Although Helsinki Watch is confident that an independent and fair judiciary can be chosen for the tribunal, it disagrees with the Security Council’s decision to grant the judiciary plenary authority to draft rules of evidence and procedure. Helsinki Watch thus urges the Security Council to amend the statute to retain oversight over the judiciary’s adoption of rules of evidence and procedure, or to issue a statement that makes clear that it intends to exercise oversight responsibilities over rulemaking. Ideally, the Security Council would accept an active role in crafting the most important rules; but, at the very least, it should review the judiciary’s rules. Grave concerns about fairness and legitimacy may arise if the judges’ actions in this crucial area are not monitored.42

The solution proposed by Helsinki Watch presented other problems, namely converting the Security Council into the ultimate custodian of the integrity of the ICTY Statute, thereby running the risk of seriously undermining the independence of the Tribunal.43 In a way, the proposed solution resembled the French post-revolutionary (p. 1123) principle whereby the final interpretation of the law was in the hands of the legislative body, and not in those of the judiciary, as a consequence of the deep distrust that judges inspired in the revolutionary legislators.44 However, the discussion provides yet another example of the complexities arising from attaching legislative functions to a judicial body.

In the context of the ICC, the clear separation between legislative and adjudicative functions should strengthen the judicial review authority of the judges. Article 51(4) clearly states that the RPE, amendments thereto and any provisional Rule shall be consistent with the Statute. The custodians of this consistency can only be the ICC judges, who must interpret and apply the Rules adopted by the Assembly of State Parties following this clear principle. If a rule enacted by the Assembly is openly inconsistent with the Statute, the judges should declare the rule to be invalid and, if necessary, use the mechanism established in paragraph (3) of Article 51 and create a provisional rule to fill the lacuna.

IV. Preliminary Conclusions

The system of elaboration and adoption of Rules of Procedure and Evidence established in the ICC Statute presents important advantages vis-à-vis the method of judicial creation chosen by the drafters of the ICTY Statute. The arguments against the latter should not be seen as a criticism of the work done by the ICTY judges in this particular field, which has significantly contributed to the development of a body of procedural provisions applicable to the context of international adjudication of criminal responsibility.45 Rather, the criticism is directed at the inherent shortcomings of the adopted process of legislation, and at some structural defects of the ICTY.

Nonetheless, the ICC approach presents considerable dangers in terms of efficiency. Excessive regulation and normative rigidity combined can suffocate the Court.46(p. 1124) This is particularly true in the case of a Court that will be forced to operate primarily on the basis of the cumbersome system of international cooperation and judicial assistance enshrined in Part 9 of the Statute, due to a deliberate decision of its drafters. In the following paragraphs I will attempt to provide a brief description of some of the core procedural provisions of the ICC Rules. Whereas this analysis will necessarily be incomplete, it may nonetheless assist in reaching a conclusion as to whether these dangers threaten the effective functioning of the Court.

V. An Overview of Some of the ICC Rules of Procedure and Evidence

The recently adopted Draft Rules of Procedure and Evidence contain 225 detailed provisions, divided into 12 Chapters. They cover most parts of the Statute, and develop the principles and provisions contained therein. I will only discuss briefly here some of the ‘pure’ procedural provisions, i.e. those technical provisions that deal with criminal proceedings and evidence stricto sensu.

At the outset, it must be noted again that a common denominator of the finalized Draft Rules appears to be an approach whereby relatively few gaps are left for regulation by the Court (in the broad sense, i.e. including all organs that compose the Court), or even for the development of a particular practice in those areas that had been left open in the Statute. The Rules thus operate as a method to firmly close the procedural system in which the Court will function. Rule 47 is a clear example of this: the provision purports to regulate part of the proceedings for initiation of an investigation under Article 15 of the Statute (proprio motu powers of the Prosecutor), namely the taking of testimony. Article 15, however, contained language broad enough to empower the prosecution to determine the best available procedure for the purposes of its preliminary inquiry under paragraph 2.47 As two commentators had noted, receiving ‘written or oral testimony at the seat of the Court’ could cover an ‘oral statement, a written account or documentary evidence’, all ‘practical sources of evidence in war crime prosecutions’.48 Rule 47, however, (p. 1125) has taken a somewhat different approach: it establishes that the detailed provisions dealing with record of questioning (Rules 111 and 112) apply mutatis mutandi to testimony received by the prosecution pursuant to Article 15(2). These rules are mandatory and prescribe that a record be made of the formal statement made by any person who is questioned in connection with the investigation and the proceedings (Rule 111), and provide a specific procedure for the questioning of a suspect or an accused (Rule 112). Leaving this last requirement aside, which covers a scenario that is extremely unlikely to happen in the context of an Article 15 inquiry, it is noteworthy that the prosecution’s discretion as to how to treat and document the testimony received at that particular stage is curtailed by an express decision of the drafters of the Rules.49

The Rules governing disclosure contain a number of important dispositions that will have a clear impact on the future ICC proceedings. At the outset, it must be stressed that the adopted Draft Rules appear to have finally disposed of the question of the admissibility of witnesses who have been granted total anonymity (i.e. even vis-à-vis the accused) in the context of the ICC. The Statute itself contained a provision that could only be reasonably read as a clear rejection of the admissibility of anonymous witnesses, Article 68(5): ‘Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof.’50 Despite some isolated attempts in the PrepCom to reintroduce the issue in the discussion, the Draft Rules further clarify the language contained in Article 68(5). Under Draft Rule 81 (restrictions on disclosure), paragraph 4, a Chamber of the Court has the duty to take the necessary steps ‘to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of trial’.51 In the light of the extremely controversial character of the use of anonymous witnesses in criminal proceedings,52 and of the clear language of the Statute on this particular issue, the decision to require in all cases disclosure to the accused of the identity of the witnesses against him or her (which should be done in a timely fashion, enabling the accused to adequately prepare his or her defence, Article 67(1)(b) ) must be welcomed. It must also be noted that, in a significant innovation, the Rules prescribe that when the (p. 1126) disclosure of information protected under Articles 54, 57, 64, 72, or 93 may create a risk to the safety of a witness, the Court shall take measures to inform the witness in advance (Rule 81(3) ).52a

Another important development in this area is the approach to the duties of the parties to disclose evidence and material in their possession, and its differences with the corresponding original ICTY provisions. Pursuant to the latter, the prosecution was under a duty to disclose only the supporting material which accompanied the indictment, all prior statements obtained by the prosecution, copies of the statements of witnesses that the prosecution intends to call at trial, the names of those witnesses, and copies of affidavits and formal statements which will be tendered.53 The defence need only disclose to the prosecution the evidence that supports the defence of alibi or any special defence.54 The defence may request to inspect other material in possession of the prosecution; however, that request triggers an equal right of access for the prosecution (Rules 66(B) and 67(C) ). Presumably because of this reason, a request under Rule 66(B) was practically never made in ICTY proceedings, enabling both parties to keep to themselves the existence of voluminous (p. 1127) material that they may proffer at trial without prior disclosure.54a The ICC Rules have, on the contrary, adopted an ‘all cards on the table’ approach to disclosure: Rules 76 and 79 establish duties of disclosure of the parties similar to those enshrined in the ICTY provisions, but in addition, Rules 77 and 78 grant both parties unfettered access to ‘books, documents, photographs and other tangible objects’ in their possession. The defence may access those items which are ‘material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person’ (Rule 77). The prosecution may only have access to material which is intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial (Rule 78). These rules provide for a much clearer scheme of disclosure than the one contained in the ICTY provisions, and may, if reasonably used by the parties, save time at trial by avoiding unnecessary discussions on admissibility of evidence. At the same time, the efforts that the parties will have to undertake, especially the prosecution, to comply with their disclosure obligations will be considerable.

Perhaps one of the main features of the Draft Rules is the development of the victims’ rights of participation in ICC proceedings. Article 68(3) of the Statute grants victims the right to present their views and concerns where their personal interests are affected, at stages of the proceedings determined to be appropriate by the Court. Those representations may be made through a legal representative, if the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The Rules have not adopted a restrictive approach to the question of legal representation and intervention of victims, as it may have been hoped by those delegations that only reluctantly accepted the principle enshrined in Article 68(3). On the contrary, Chapter 4, Section III contains an entire sub-section (sub-section 3), comprising five Rules55 that envisage significant powers of intervention and representation throughout the proceedings. Particularly relevant is Rule 91, which is the main provision regulating participation in the proceedings, and which allows a legal representative of victims to participate in hearings, unless not authorized by the Chamber concerned, in which case the intervention shall be (p. 1128) limited to written submissions. If a legal representative attends and participates in a hearing, he or she may apply to the Chamber and request leave to question a witness, an expert, or the accused. Further, in the event of a hearing limited to reparations under Article 75, the legal representative has full rights of presence in the hearing, and may question witnesses, experts, and the person concerned with leave of the Chamber concerned. The Rules have thus shaped the role of the legal representative of the victims as a quasi-party, with important (even if limited) procedural rights. This is a ground-breaking development that, together with the principles of reparation established in Article 75 of the Statute, and the powers of participation enshrined in Articles 15 and 19, allow the conclusion that, in comparison to its predecessors, the ICC is a much more victim-oriented tribunal. Open questions are, among others, how this new quasi-party will interact with the prosecution and the defence, the consequences of this new dynamic in the context of the ICC trial proceedings and how the Court will interpret and apply the provision giving standing to victims (Rule 89).56

In the area of evidentiary law, the Rules contain a number of important features. I will only mention here two main issues, namely the novelty of a set of privileges in the context of international criminal proceedings, and the rules pertaining to alternative means to live testimony before the ICC. The draft rules of privilege maybe seen as reactions to particular issues raised in ICTY proceedings, and show to what extent actors in the negotiations looked into the ICTY experience while discussing the appropriate provisions for the ICC.

In the Furundžija case, the Trial Chamber ordered the disclosure of the prior medical records of a witness who had been under psychiatric treatment, the existence of which the prosecution had not disclosed as exculpatory evidence under ICTY Rule 68 on the basis that their probative value was minimal and disclosure would have been a gross invasion of the witness’ privacy, among other reasons. The Chamber rejected these arguments, considered that the prosecution had incurred in misconduct and ordered a reopening of the proceedings.57 The decision triggered an intense discussion as to the nature of the records and the scope of the interests of medical confidentiality vis-à-vis the required fairness to an accused.58 The drafters (p. 1129) of the ICC Rules decided to enact a specific provision for similar situations: ICC Draft Rule 73(2) establishes that, in addition to lawyer-client privilege (covered in paragraph 1 of the same Rule), certain communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged and consequently not subject to disclosure.59 For the purposes of determining whether the communication must be treated as privileged, paragraph 3 of the Rule mandates the Court to ‘give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor’.

In turn, Rule 73(4) establishes a tailor-made privilege for the International Committee of the Red Cross: the Court is under a duty to

regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence of, the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless:

(a)  After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or

(b)  Such information, documents or other evidence is contained in public statements and documents of ICRC.

The Rule makes clear that if the information has been obtained from independent sources, it may be used by the Court (paragraph 5). In the event of a determination by the Court that the information is of great importance for a particular case, the only solution offered by the Rule is the holding of consultations between the Court and the ICRC to resolve the matter by cooperative means (paragraph 6). This provision must be seen as an indirect consequence of the litigation between the ICRC and the ICTY Office of the Prosecutor in the case of Prosecutor v. Šimić, in which the prosecution sought to call a former employee of the ICRC as a witness. The ICRC objected, on the basis that the Tribunal had no jurisdiction over the ICRC, or alternatively, that the matters on which the witness would testify were subject to privilege. The decision of the majority of the Trial Chamber stated that the International Tribunal’s rules may be affected by international customary law, to the extent that relevant evidence with probative value may not be admitted where its admission is prohibited by a rule of customary international law, and that the ICRC has a right under customary international law to non-disclosure of information acquired by a former employee in the course of performing official (p. 1130) ICRC functions. The Chamber further concluded that this rule did not admit, or call for, any balancing of interest.60

The second area of rules of evidence that I wish to address deals with the possibilities offered by the ICC Rules to have documents, transcripts or records introduced as evidence in lieu of live testimony. The ICTY has slowly developed a jurisprudence whereby transcripts from other proceedings may be tendered into evidence under certain circumstances.61 Further, at least on two occasions, the prior statement of a witness taken by an investigator of the Office of the Prosecutor has been admitted into evidence in lieu of live testimony.62 In all instances, the procedural vehicle for the admission of the documentary evidence has been ICTY Rule 89(C), which grants a Chamber of the Tribunal the broad authority to admit ‘any relevant evidence which it deems to have probative value’.63 The ICC Rules seem to have adopted a more restrictive approach to this (p. 1131) particular question. Under Draft Rule 68, if the Pre-Trial Chamber has not taken measures under Article 56 of the Statute,64 a Trial Chamber may only admit previously recorded audio or video testimony of a witness, or the transcript or other documented evidence if both parties had the opportunity to examine the witness during the recording, if the witness is not present at trial, or if the witness is present, he or she does not object to the submission of the record, and both parties and the Chamber have the opportunity to examine the witness during the proceedings. This regulation has, at least, the following consequences: (a) it recognizes the mechanism enshrined in Article 56 as the sole method to preserve evidence under the Statute; if the Pre-Trial Chamber has taken adequate measures under this provision to protect the rights of the accused, then the evidence collected will presumably be admissible at trial, even if that means a limitation of the rights of cross-examination of the defence;65 (b) in all other circumstances, it establishes as a principle that no admission of a prior record is possible at the expense of the rights of cross-examination of the parties.

The ramifications of this regulation are considerable, and show once more the dangers of the system of investigation adopted by the Statute. Since the taking of (p. 1132) testimony of a witness during the investigative stage will generally be done through the system of international cooperation and judicial assistance, and therefore be governed by national law, the practical value of this provision (and even of Article 56 of the Statute) will clearly depend on the quality of the implementing legislation adopted by State Parties. If State Parties do not adopt flexible legislation that allows the parties to intervene in the questioning of a witness performed by a national authority pursuant to a request for assistance of the Court, or, even more important, provides for the Pre-Trial Chamber to intervene in the collection of evidence and take measures under Article 56, the Court will simply not be able to collect evidence that is subsequently admissible under its own rules.

Finally, the rules pertaining to the conduct and direction of trial proceedings are also worthy of comment. In contrast with other areas in which the drafters of the Rules have been extremely detailed, the conduct of the proceedings and testimony, in particular the presentation of evidence, will practically operate in a procedural vacuum, presumably due to the impossibility of reaching consensus in the PrepCom. Rule 140 relies on an agreement between the parties as to how evidence shall be presented (presumably in a status conference, see Rule 132), failing which the presiding judge shall issue directions. It is not hard to foresee the practical difficulties of such an unpredictable system, starting with the impossibility of ordering in advance the presentation of witness’ testimony and making the necessary arrangements to ensure the attendance of witnesses at trial.66 This will not only affect the efficient preparation of the case by the parties, but will also create an additional burden for the Victims and Witnesses Unit. Further, the mechanism available to the ICTY judges to terminate proceedings through a judgment of acquittal upon completion of the Prosecutor’s case (ICTY Rule 98bis) is not at the disposal of the ICC Trial Chambers, due to the rather anarchic regulation adopted. Finally, the regulation implies that there may potentially be as many different regimes for presentation of evidence as arrangements between the parties, or presiding judges, something that conspires against basic principles of predictability and consistency67 in criminal proceedings.

(p. 1133) VI. Conclusions

Criminal proceedings before the ICC will not be simple. This is, on the one hand, a consequence of the complementary nature of the Court, the rather cumbersome regime of challenges to admissibility and to jurisdiction and of the limited powers conferred to the Court to conduct its own investigations and proceedings. On the other hand, the normative context in which the ICC will operate is quite complex, due to the level of detail contained in the Statute and now in the Rules. Still, the provisions contained therein appear to be, generally speaking, reasonable and workable, but, at the same time, there is an unavoidable degree of uncertainty as to how they will operate in practice. Further, while the method of enacting and amending Rules of Procedure and Evidence adopted by the Statute should be welcomed, the price to pay for its gains in terms of predictability and fairness is a rigidity that the ICC predecessors have not experienced. The success or failure of these provisions will largely depend on the approach taken by State Parties: if they add rigidity to rigidity in the implementing legislation, they may suffocate the Court; if, once gathered in the Assembly of State Parties, they refuse to react to desperate requests for amendment coming from the Court, they may kill its practical ability to efficiently comply with its mandate of exercising its jurisdiction over persons for the most serious crimes of international concern.68

Nonetheless, although the dangers of excessive normativism and national conservatism are apparent, the adopted Rules, together with the provisions of the Statute, constitute a significant development in international criminal law; they ensure predictability in the adjudication of criminal responsibility and further, they offer the highest protection to individual rights during the investigation and prosecution of crimes within the jurisdiction of the Court. It will be for the Court and for State Parties to ensure that these benefits outweigh the recognizable limitations and shortcomings in the foundational documents of the ICC.(p. 1134)

The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. The author wishes to express his gratitude to Kelly Askin, Helen Duffy, Ken Roberts, and Vladimir Tochilovsky for their comments and suggestions.

Footnotes:

1  M. C. Bassiouni and P. Manikas, The Law of the International Criminal Tribunal for the Former Yugoskvia (1996) 819–820.

2  E. J. Wallach, ‘The Procedural and Evidentiary Rules of Post-World War II War Crimes Trials: Do They Provide an Outline for International Legal Procedure?’, 37 Columbia Journal of Transnational Law (1999) 851.

3  V. Tochilovsky, ‘Rules of Procedure for the International Criminal Court: Problems to Address in Light of the Experience of the Ad Hoc Tribunals’, 46 NILR (1999) 345 and note 8, quoting V. Morris and M. P. Scharf (eds.), An Insider’s Guide to the International Criminal Tribunal for the Former Yugoskvia (1995).

4  The last amendments entered into force on 8 May 2001 amending two Rules (Document IT/203). A significant re-structuring had taken place on 19 January 2001: a total of 28 Rules were amended, 4 new Rules were adopted, and 1 Rule was deleted. See Document IT/32/Rev. 19.

5  Conversely, a mere amalgam of different systems by itself offers no guarantee that the adjudicating body will have the resources and means to become an effective, workable, and meaningful international jurisdiction. Tochilovsky, supra note 3, esp. at 358–360.

6  Art. 121 of the Statute.

7  Notably, Arts. 15–20.

8  Art. 41, among others.

9  Arts. 89, 91, 92, 93, and 99, inter alia.

10  International Law Commission. The ILC Draft Statute contained 60 articles in 7 parts. It was prepared, together with a commentary, in 1994.

11  For a complete description of the negotiating process on the procedural provisions of the ICC Statute, before and during the Rome Conference, see S. Fernandez de Gurmendi, ‘The Process of Negotiations’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (1999) 217 et seq.

12  R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results (1999) at 218. Further descriptions of the development of negotiations in this area can be found in the contributions from Guariglia, Behrens, Friman, Muttukumaru, Piragoff, and Brady and Jennings to Ch. 8 of the same book.

13  On the discussions pertaining to the Rules of Procedure and Evidence during the Rome negotiations, see P. Kirsch, ‘The Preparatory Commission Today’, in Establishment of the International Criminal Court (2000) 9–10.

14  B. Broomhall, ‘Article 51’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) 683.

15  Document PCNICC/2000/INF/3/Add.1.

16  The proposed Rules constitute a compromise text that was adopted by consensus. It is unlikely that State Parties, once gathered in the Assembly, will wish to re-open discussions that lasted for almost two years.

16a  For an account of the negotiating history of the ICC Rules of Procedure and Evidence see S. Fernández de Gurmandi, Elaboration of the Rules of Procedure and Evidence, in R. S. Lee (ed.) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), 235 et seq.

17  Art. 51(3). It has been noted that recourse to this provision may be the main avenue for ICC judges to deal with the type of urgent situations requiring an amendment or enactment of specific procedural provisions that the ICTY judges have been faced with. See G. Boas, ‘Comparing the ICTY and the ICC: Some Procedural and Substantive Issues’, 47 NILR (2000) 272–275.

18  This separation between ‘Rules’ and ‘Regulations’ has been characterized as a novelty in the context of international tribunals; see H.-J. Behrens, ‘Article 52’, in Triffterer (ed.), supra note 14, at 696. The rationale behind it is that the rules governing the mere internal functioning and organization would be more efficiently dealt with by those who are most closely connected with the ICC proceedings (Behrens, ibid.). However, even within this limited exercise of legislative functions by the judges, the drafters of the Statute assigned to the Assembly of States Parties a ‘custodian’ role, by conditioning entry into force of the draft regulations on the lack of objections stemming from a majority of States Parties within six months of its adoption by the judges (Art. 52(3) ).

19  On the consequences of the jurisdictional regime of the ICC Statute, see R. Dicker and H. Duffy, ‘National Courts and the ICC’, Brown Journal of World Affairs (1999) 56–57. The relationship between the method of elaboration and adoption of the rules in the Rome Statute and the ‘consensual’ base of the ICC is also stressed by Broomhall, supra note 14, at 686.

20  H. L. A. Hart, The Concept of Law (1994) 96–99.

21  ‘Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator’, Montesquieu, The Spirit of the Laws (1989) 157. For a description of the historical evolution of the concept of independence of the judiciary within the broader context of separation of powers, see L. Ferrajoli, Derecho y Razon (1995) 584–589.

22  C. Roxin, Strafverfahrensrecht (1998) 9 et seq.

23  A. Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’, 4 European Human Rights Law Review (1997) 341.

24  Similarly, the judge would not be disqualified from sitting as a member of the Appeals Chamber, or as a member of a bench of three judges appointed pursuant to Rules 65(D), 72(B)(ii), 73(B), or 77(J), to hear any appeal in that case (Rule 15(C) ).

25  Unlike the future ICC, in the ICTY, judges are not divided by functions or sections (e.g. pre-trial judges, trial judges, and appeal judges). Rather, all different judicial functions are performed by all judges following a system of rotation through the different cases: Judge A acts as confirming judge in Case 1, but she may simultaneously be acting as trial judge in Case 2, and may subsequently hear an interlocutory appeal as a member of the Appeals Chamber in Case 3. Naturally, as the caseload grows, the speed of rotation increases exponentially, with the result that at one point in time the Tribunal ‘runs out’ of judges that have not already, in one way or another, intervened in all cases. This problem should have disappeared or, at least, should have been reduced to a manageable minimum with the incorporation of the ad litem Judges to the ICTY, who, according to the Amended Statute, only serve as Trial Chamber Judges, thereby allowing for the composition of a more stable and permanent bench for the Appeals Chamber (see Amended Statute of the International Criminal Tribunal for the Former Yugoslavia, as Amended 30 November 2000 by Resolution 1329, Articles 13 ter and 13 quater). Rule 15, however, has not been re-amended by the Plenary.

26  The amendment found support in the Expert Group’s Report, where it was recommended ‘that further consideration be given by the Trial and Appeals Chamber to whether confirmation of an indictment should automatically result in disqualification of the confirming judge’. See Report of the Experr Group ro Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634 (22 November 1999) para. 43.

27  ICCPR, Art. 14(1); ACHR, Art. 8(1); ECHR, Art. 6(1), all referring to an ‘independent and impartial tribunal’. Art. 13(1) of the ICTY Statute provides that judges of the International Tribunal ‘shall be persons of high moral character, impartiality and integrity’, and Art. 21 establishes the right of any accused to a fair and public hearing. See Prosecutor v. Furundžija, Judgment (App. Ch.), IT-95-17/1-A, 21 July 2000, para. 177.

28  S. P. van Dijk and G. II. J. van Hoof, Theory and Practice of the European Convention on Human Rights (1998) 455.

29  Rule 61 (B) and (C). The intervening Chamber shall also issue an international arrest warrant in respect of the accused which shall be transmitted to all States, under Rule 61(C).

30  The principle of impartiality has been recently discussed at length by the ICTY Appeals Chamber in the Furundžija Judgment from 21 July 2000. In that decision, the Appeals Chamber examined the jurisprudence of the European Court of Human Rights (as well as decisions from national jurisdictions), noted that under that jurisprudence a decisive factor is whether a fear of lack of impartiality can be held objectively justified (paras. 179–188), and finally adopted the following standard (para. 189):

  1. A. A Judge is not impartial if it is shown that actual bias exists

  2. B. There is unacceptable appearance of bias if:

    1. (i)  a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or

    2. (ii)  the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.

This standard has subsequently been followed by the Appeals Chamber in its recent Čelebići Decision (Prosecutor v. Delalić et al., IT-96-21-A, 20 February 2001); see paras. 682–684 and 697–708.

31  However, it has been submitted that the legal basis for the authority of the ICTY judges to draft the Rules of Procedure and Evidence is not easy to identify. Prof. Roggemann has pointed out that the validity of the ICTY Rules may only be derived from a three-step delegation process: (a) the UN Member States have conferred to the Security Council primary responsibility for the maintenance of international peace and security (Art. 24 UN Charter); (b) the Security Council has, in the exercise of this function adopted Resolutions 808 and 827, and accordingly established the ICTY and adopted its Statute, which in turn gives ICTY Judges the authority to adopt Rules of Procedure and Evidence (Art. 15); (c) the judges of the ICTY adopted the original Rules of Procedure and Evidence in the 11 February 1994 Plenary. See H. Roggemann, Die Internationalen Strafgerichtshöfe (1998) 146–147. The quest for a normative basis of this authority is even more difficult in the cases of substantive offences attracting considerable penalties created by the judges (ICTY Rules 77 and 91).

32  See I. Tallgreen, ‘We Did It? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court’, 12 Leiden Journal of International Law (1999) 683.

33  I mean here the extent to which a rule may be perceived as legitimate by those it purports to reach.

33a  In this sense it is important to note that the discussion on the ICC RPE was coloured by relevant arguments on the system of values governing, or underpinning, the ICC proceedings. See Silvia Fernández (2001) 253–255.

34  The significance of the object of regulation is what constitutes the main difference between the Rules of Procedure and Evidence and the administrative Regulations of the Court.

35  These postulates have been drawn up by the German philosopher Jürgen Habermas from earlier proposals elaborated by J. Cohen. S. Habermas, Fakitizität und Geltung (1994) 370–371. See also O. Guariglia, Moralidad: Etica Universalista y Sujeto Moral (1996) 213–216.

36  Nor is the writer of this article the right person to embark on such a complex analysis!

37  Whereas ICTY Rule 96 mixed procedural elements with issues of substantive law, the ICC Draft Rules are clear and straightforward evidentiary rules, and establish procedural safeguards that did not exist in the context of the ICTY (notably, the mandatory in camera procedure to consider relevance or admissibility of evidence under Draft Rule 72). A detailed analysis of Rule 96 can be found in P. Viseur Sellers, ‘Rule 89(C) and (D): At Odds or Overlapping with Rule 96 and Rule 95?’, in R. May et al. (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (2001).

38  The Report of the Preparatory Commission states in its Explanatory Note that the Rules ‘do not affect the procedural rules for any national court or legal system for the purpose of national proceedings’. This may be seen as a reflection of the discomfort of some delegations with some provisions of the Rules. However, I consider that the standards developed in the ICC foundational documents (Statute and Rules) can be expected to have an ‘educational’ effect, i.e. provide a model for national jurisdictions on specific areas, esp. rights of the accused and rights of victims. At a minimum, the Rules and the Statute will have an immediate effect in the adoption of the necessary domestic provisions for the purposes of ensuring co-operation with the Court. See Silvia Fernández (2001) 255.

38a  The crafting of a set of rules governing the presentation and admission of evidence in cases of sexual violence appears to have been one of the most contentious issues in the negotiation of the Rules. However, this fact, coupled with the consensus building process that led to the adoption of Rules 70, 71, and 72 enhances even more, in my view, their percieved legitimacy. See Donald K. Piragoff, ‘Chapter 4, Evidence’, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, pp. 369–391. See also, by the same author, “Procedural Justice Related to Crimes of Sexual Violence” in: Horst/Fischer/Claus Kress/Sascha Rolf Lüder (eds.), International and National Prosecution of Crimes under International Law, Berlin, 2001, 486–421.

39  IT/143/Rev.2, 24 January 2002. Identical language was contained in the first version of the Practice Direction (18 December 1998).

40  Para. 8.

41  R. Dixon, ‘Developing International Rules of Evidence for the Yugoslav and Rwanda Tribunals’, in 7 Transnational Law and Contemporary Problems (1997) 95. ICTY Annual Reports contain a brief description of the adopted amendments and occasionally refer succinctly to the rationale behind them.

42  Helsinki Watch, ‘Procedural and Evidentiary Issues for the Yugoslav War Crimes Tribunal’, reproduced in V. Morris and M. P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 2 (1993) 493–494 (emphasis added).

43  Further, the convenience of assigning these monitoring functions to a highly political body, such as the Security Council, can also be seriously questioned.

44  See F. De la Rua, La Casacion Penal (1994) 12–15. See also Daniel Pastor, La Nueva Imagen de la Casaciön Penal (2001) 19–23.

45  As a matter of fact, the ICTY Rules were one of the main sources employed in the elaboration of the ICC RPE. See Document PCNICC/1999/DP.1, Draft Rules of Procedure and Evidence submitted by Australia (26 January 1999). For an analysis of the impact of ICTY law and practice on the procedural provisions of the ICC Statute, see K. Roberts, ‘Aspects of the ICTY Contribution to the Criminal Procedure of the ICC’, in Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, as cited in supra note 37.

46  One of the key NGOs in the ICC creation process stared the following: ‘Amnesty International … believes that the ICC Rules should be as short, simple and flexible as possible, should not repeat the text of the Statute and should be in a logical order so that they are easy to understand by all involved in the proceedings before the new Court. Such an approach would help to ensure that the ICC Rules will not require frequent amendments, which will be difficult to adopt.’ See Amnesty International, ‘The International Criminal Court: Drafting effective Rules of Procedure and Evidence for the trial, appeal and revision’, Memorandum for participants at the Siracusa intersessional meeting, 22 to 26 June 1999, p. 4. For a critical view on the ICC model of rule-making, see Boas, supra note 17.

47  For the purposes of analysing the seriousness of the information received, the Prosecutor ‘may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court’.

48  M. Bergsmo and J. Pejić, ‘Article 15’, in Triffterer (ed.), supra note 14, at 366. The authors further warn against an ‘unnecessarily restrictive interpretation of the paragraph, suggesting that it is exhaustive in its listing of investigative steps which the Prosecutor may take during the preliminary examination’ (at 367).

49  The prosecution could presumably still conduct informal interviews that do not amount to ‘formal statements’ under Rule 111. On the development of the Rules, ‘underpinning Act. 15, see J. Holmes, ‘Chapter 3, Jurisdiction and Admissibility’, in R. S. Lee (ed.), supra note 16a, 329.

50  Emphasis added. The provision subsequently adds that such measures ‘shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’.

51  Emphasis added.

52  See Cassese, supra note 23, at 339–342.

52a  In a recent and exhaustive article on witness evidence before the ICC, Claus Kress has advanced the position that the matter is not necessarily disposed of by the language of Article 68(5) and of Rule 81(4), since the open language in Rule 88 could be construed as allowing the practice of anonymous witnesses. He contends that the ICC Judges will not be able to avoid making a ‘policy choice’ (‘Witnesses in Proceedings Before the International Criminal Court’, in International and National Prosecution of Crimes under International Law, 375–382). I respectfully disagree. The ‘policy choice’ has already been made in the appropriate forums for reaching such decisions: the Rome Conference and the UN Preparatory Commission in charge of elaborating the Draft Rules of Procedure and Evidence, and it was made pursuant to full and comprehensive discussions between States, and with active NGO input. I further disagree with the method of interpretation proposed, whereby apparently the lack of an explicit rejection to the use of anonymous witnesses in the applicable provisions of the Statute and the Rules would imply that the device is not fully unavailable to the ICC Judges. In my view, the appropriate point of departure should actually be the opposite: an interference of such a level of intensity with the right enshrined in Article 67(1)(e) of the ICC Statute (the right of the accused to examine the witnesses against him or her) should be considered to require an explicit normative foundation, establishing its conditions and limits (I am referring here to what a German scholar, Eberhard Schmidt, enunciated as the nulla coactio sine lege principle—see ‘Zur Lehre von den Strafprozessualen Zwangmaßnahmen’, NJW 15 (1962) 664 et seq.). Not only is there no express authority under the Statute and the Rules for the use of anonymous witnesses: the relevant provisions, both in the Statute and the Rules exclude the possibility of withholding information pertaining to the identity of prosecution witnesses from the accused at the trial stage. If there was any ambiguity or confusion as to the meaning of Article 68(5), such ambiguity has been fully clarified by the specific provision on disclosure contained in the Rules (Rule 81(4)). A provision referring to measures to facilitate the testimony of a traumatized victim, or a child, an elderly person or a victim of sexual violence (Rule 88), should not be used as a Trojan horse to introduce a controversial method that, despite the existence of numerous proposals during the ICC negotiations, simply could not find a place neither in the Statute nor in the Rules. For a similar construction of the relevant provisions, see Helen Brady, ‘Protective and Special Measures for Victims and Witnesses’, in R. S. Lee (ed.), supra note 16a, at 450–453.

53  ICTY Rules 66(A) and 67(A). The prosecution is also under an unfettered duty to disclose exculpatory evidence under Rule 68.

54  ICTY Rule 67(A)(ii).

54a  The scope of these provisions was subject to different interpretations. For instance, Trial Chamber III considered that despite the language in Rules 65ter, 66(B), and 67(C), the Prosecution was under a duty to also disclose to the defence not only a list of exhibits, but also the exhibits themselves. The Chamber further challenged the very fondation of the regime of reciprocal disclosure by stating that it was an elementary notion of fair trial that ‘the accused, without incurring the obligation of disclosure, should know the case that he or she has to meet and should be given adequate opportunity to prepare a Defence’. See Prosecutor v. Krajisňik and Plavšic, IT-00-39 & 40-PT, Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B), and 67(C), 1 August 2001. The Plenary subsequently amended Rule 65ter (E) (iii) and (G) (ii), now expressly requiring as a rule the reciprocal disclosure of copies of the exhibits that the parties intended to offer at trial.

55  Rules 89–93.

56  For instance, concerning crimes committed in the context of an armed conflict between States A and B by both belligerent parties, are victims from State B entitled to participate in proceedings held against one of their country’s commanders on the basis that they have also suffered harm as a result of the commission of crimes within the jurisdiction of the Court (Rule 85(a) )? A detailed account of the negotiations can be found in G. Bitti and H. Friman, ‘Participation of Victims in the Proceedings’, in R. S. Lee (ed.) supra note 16a.

57  Prosecutor v. Furundžija, IT-95-17/1-T, Decision from 16 July 1998. A detailed account of the negotiations can be found in G. Bitti and H. Farmer, ‘Participation of Victims in the Proceedings’, in R. S. Lee (ed.) supra note 16a.

58  See K. Askin, ‘The International War Crimes Trial of Anto Furundžija: Major Progress Toward Ending the Cycle of Impunity for War Crimes’, 12 Leiden Journal of International Law (1999) 935–955, at 940–942.

59  The communications will be treated as privileged if the Court is satisfied that (a) communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure; (b) confidentiality is essential to the nature and type of relationship between the person and the confidant; and (c) recognition of the privilege would further the objectives of the Statute and the Rules.

60  Prosecution v. Šimić et al., Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, IT-95-9-PT, 27 July 1999, paras. 74, 76, 80. In a separate opinion, Judge Hunt questioned the correctness of the scope of the rule of privilege as construed by the majority, and indicated that it may well be a matter for the Trial Chamber to weigh the competing interests in every individual case. See Separate Opinion of Judge Hunt, paras. 28–33. It is unclear whether these two privileges recognized in the ICC Rules (confidential relationships and ICRC confidentiality) rule out any authority of the Court to make a final determination on the issue and order disclosure of the information if satisfied, for instance, that the interest in a proper adjudication of the matters before it (including the right of an accused person to access exculpatory evidence) outweighs the protected interests in confidentiality, taking into account, inter alia, the availability of adequate protective measures to ensure confidentiality outside the courtroom. It must be noted that the Statute only curtails the ability of the Court to order disclosure in the case of protected national security information under Art. 72. However, it must also be borne in mind that Art. 69(5) clearly establishes that the Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. Further, if the conclusion of the majority of the Šimić Trial Chamber as to the existence of an ICRC privilege under international customary law (with that particular scope and breadth) is correct, then presumably the Court would incorporate it in its body of law under Art. 21 of the Statute. For an analysis of the relevant provisions on privileges, see Pigaroff, ‘Chapter 4, Evidence’, in R. S. Lee (ed.) supra note 12, 357–369.

61  The ICTY Appeals Chamber has confirmed the admissibility of transcripts from other ICTY proceedings as evidence with probative value under Rule 89(C), taking into account, inter alia, whether the consequences for the opposing party’s rights of cross-examination can be considered to be compensated by the cross-examination exercised during the trial proceedings in which the witness testified live. See Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, IT-95-14/1-AR73, App. Ch., 16 February 1999. New Rule 92bis(D), which entered into force on 19 January 2001, allows the use of transcripts which go ‘to proof of a matter other than the acts and conduct of the accused’. A detailed analysis of the principles pertaining to admissibility of evidence in ICTY proceedings can be found in the articles of May and Wierda, Boas, and Rodrigues and Tournaye contained in Essays on ICTY Procedure and Evidence, supra note 37.

62  Prosecutor v. Blaškić, Decision on the Defence Motion to Admit into Evidence the Prior Statement of Deceased Witness Midhat Haskić, IT-95-14-T, 29 April 1998. Prosecutor v. Galić IT-98-29-T, Decision on the Prosecutor’s Motion for the Admission into Evidence of Witness Statement by a Deceased Witness, and Related Report Persuant to Rule 92 bis (c), 12 April 2002, and Decision on the Prosecutor’s Second Motion for the Admission into Evidence of Witness Statement by Deceased Witness Bajram Šopi, Pursuant to Rule 92 bis (c), 18 April 2002.

63  The Expert Group’s Report encouraged the use of transcripts and other surrogate means of live testimony; see paras. 85–88.

64  Art. 56 regulates the role of the Pre-Trial Chamber in relation to a unique investigative opportunity, including its authority to take necessary measures to ensure the integrity and efficiency of the proceedings and to protect the rights of the defence. See F. Guariglia, ‘Article 56’, in Triffterer (ed.), supra note 14.

65  Recent developments in the ICTY jurisprudence indicate that adopting Art. 56 of the ICC Statute was probably a wise decision. In Prosecutor v. Kordić and Čerkez, the Appeals Chamber overruled the decision of the intervening Trial Chamber to admit into evidence, at the request of the prosecution, the statement taken by an investigator of the Office of the Prosecutor of a witness that subsequently died. The Appeals Chamber held that, whereas no prohibition of hearsay evidence existed in the jurisprudence of the International Tribunal, a statement taken by an OTP investigator, not under oath or under other formal circumstances, never subject to cross-examination and obtained through multiple translations did not offer any guarantees of reliability and was therefore inadmissible (see Prosecutor v. Kordić, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000). However, until the January 2001 amendment to the Rules, the ICTY Prosecution lacked a mechanism similar to the one enshrined in Art. 56 of the ICC Statute, apart from the general rule on depositions (Rule 71) and the rule allowing the presentation of affidavits in corroboration of live testimony (Rule 94ter): if the Prosecution wished to ‘secure’ a statement through specific measures, such as judicial intervention, it had to turn to the national authorities in the former Yugoslavia, an option that is very often impracticable or insecure. New Rule 92bis allows the taking of a written witness statement to be certified by a Presiding Officer appointed by the Registrar of the Tribunal for that purpose (para. (B)(ii) ). However, the new provision limits the admission of this evidence to cases where the statement ‘goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment’ (para. (A) ), a limitation that is not contained in Art. 56 of the ICC Statute, nor in the ICC Rules pertaining to that provision. For an analysis of ICTY Rule 92bis, see F. Guariglia, ‘The Admission of Documentary Evidence and of Alternative Means to Witness Testimony in Proceedings before the ICTY’, in H. Fischer et al. (eds.), International and National Prosecution of Crimes under International Law (2001). For recent interpretations of this provision and its scope, see the Galić decision cited above and also Prosecutor v. Naletilić and Martinović, IT-98-34-T, Decision on the Prosecutor’s Request for Public Version of Trial Chamber’s Decision on the Motion to admit Statement of Deceased Witnesses [ … ] of 22 January 2002; Prosecutor v. Milosević, IT-02-54-T, Decision on Prosecution’s Request to have Written Statements under Rule 92bis, 21 March 2002.

66  For instance, the prosecution may make arrangements with the witnesses that it has previously contacted in the expectation that it will be able to present its evidence first; absent an agreement with the defence, the presiding judge may well decide to hear all witnesses (i.e. witnesses proposed by both parties) first, and then move to the presentation of exhibits and documentary evidence, a decision that would force the prosecution to reschedule its original provisional arrangements.

67  In its July 1999 Commentary to the Preparatory Commission on the International Criminal Court, Human Rights Watch stated that ‘an important aspect of a fair trial is predictability and consistency as to the manner in which the proceedings will be conducted. This allows both the defense and the prosecution to prepare adequately and appropriately for the trial, maintains the integrity of the Court and ensures that trials can proceed efficiently and expeditiously’ (at 53–54).

68  ICC Statute, Art. 1.