Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility

Abstract

The Rules of Procedure and Evidence of the ICTY are the first coherent body of principles governing the prosecution of violations of international humanitarian law, or indeed international law, to be constructed. The Rules and the practice of the ICTY in their creation and application reveal a profoundly ambitious exercise: the moulding of rules of evidence and procedure which encapsulate fundamental principles specific to the trying of international crimes. The need for expedition in the trying of enormously complex cases and the requirements of fairness and strict adherence to human rights principles compete inside a framework devoid of the history and structure of rules and procedures developed in domestic criminal law jurisdictions. While the framework of the International Tribunal is ostensibly adversarial, the Rules encapsulate concepts borrowed from the continental and common law systems of criminal law. To achieve this, the ICTY has pursued a level of flexibility in the process of creating, amending and interpreting its Rules with a frequency unknown to any other jurisdiction before it. This article will first examine the human rights guarantees enshrined in the Statute of the ICTY and how they have been interpreted given the sometimes competing need to expedite proceedings. Secondly, the unique rules governing the presentation and admissibility of evidence, and in particular Rule 89 and relevant jurisprudence, will be considered. Thirdly, it will discuss some of the case management innovations which have been implemented to increase the flexibility in pre-trial and trial procedures in an attempt to expedite trials. In particular, the procedures implemented in the Kordic case, the longest and most complex trial tried before the International Tribunal, are studied. The article concludes with an analysis of some recent amendments to the Rules. In doing so, the ICTY approach will occasionally be compared with that taken in the Statute and Rules of Procedure and Evidence of the International Criminal Court (ICC). The tension in the ICTY between the expedition of trials and the protection of the rights of the accused will be revealed. The increasing move toward flexibility in the rules of admissibility of evidence reveals such a tension, for instance, with the right of an accused to cross-examine witnesses.