Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court

Abstract

The purpose of this article is to analyse developments in the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In a recent article, I discussed how the Rules of Procedure and Evidence of the ICTY amount to the first coherent body of principles governing the prosecution of violations of international humanitarian law. The ICTY, preoccupied as it is by the need to expedite proceedings, has developed and changed its Rules, and has interpreted these Rules, in such a way as to give it the utmost freedom and flexibility to admit and assess evidence submitted by parties before it. The ICTY has also amended procedures to enable it to accept evidence in a form normally not permitted in adversarial criminal law jurisdictions. This article will first examine the primary principle applied by the ICTY in dealing with the admissibility and use of evidence before it. This principle is not necessarily manifest on the surface of the Rules and requires an understanding of what motivation lies behind the institution’s frequent amendment of the Rules. It will then analyse the relevant amendments made to the Rules since completion of my last article that are informed by this principle. In doing so, it will be apparent that the need to expedite trials is not a motivation born only of the right of an accused person to a fair and expeditious trial, but also of the political pressures under which the International Tribunal operates. It will examine recent jurisprudence applying the Rules of the ICTY which clarify judicial thinking behind the development and amendments to the Rules and give some insight into their interpretation. Finally, it will examine some of the rules of procedure and evidence of the International Criminal Court and make some comparisons with the experience of the ICTY.