K.A.A. Khan, C. Buisman and C. Gosnell (eds), Principles of Evidence in International Criminal Justice

Abstract

Approaching a decade since the entry into force of the Rome Statute, the International Criminal Court (ICC) looms increasingly large amid the (shrinking) community of international criminal institutions. While the dockets of the ad hoc tribunals wane, the caseload of the ICC is only set to increase. Yet, with the first ICC trial only now approaching conclusion, the Rome Statute and Rules are still to acquire a thoroughly tested jurisprudence. Institutional application of key aspects of the law of procedure and evidence, fundamental to the character of the criminal process, remains in its early stages. Khan, Buisman and Gosnell’s Principles of Evidence in International Criminal Justice (‘Principles’) is thus a timely arrival. Supplementing R. May and M. Wierda’s seminal International Criminal Evidence (Ardsley: Transnational Publishers, 2002), Principles is an overtly ‘forward looking’ work which seeks to provide a platform from which the future of the ICC’s approach to the law of evidence can be contemplated. This meticulous and wide-ranging study professes to be both descriptive and critical, both ‘stock-taking and outlook’ as described in the Foreword by Judge Nsereko. The contribution of academics, judges and practitioners results in a narrative that reflects a range of different institutional perspectives. While slight variations in style and focus are therefore apparent, the overall level of detail of the chapters is nevertheless commanding. Although the editors aspired (and succeeded) to write more than a simple catalogue, their work in collating, recording and presenting some of the key decisions of the various international courts and tribunals is nonetheless valuable in itself. The recent publication of a text exploring related territory [G. Boas, J.L. Bischoff and N.L. Reid, International Criminal Procedure (Cambridge: Cambridge University Press, 2011)] is testament both to the importance of this exercise and the relative absence of recent scholarship in these areas — a phenomenon upon which the editors themselves remark. Principles is loosely structured around the progress of a typical international trial, supplemented with a more general analysis of contextual issues. After an initial exploration of some ‘background’ themes, the text proceeds through issues relevant to pre-trial, trial and ‘extra-trial’ stages (including post-trial). Part I is more than just prologue. Principles leaves the reader with a strong sense of the extent to which the law of evidence is situated in — and formed by — the particularities of each jurisdiction. This was quite deliberate: as the editors comment, the study presents ‘experience’ not ‘precedent’. Through various perspectives, Part I analyses the manner in which jurisdictions gain that ‘experience’, and therefore sets the tone for the specific discussion in Parts II–IV as ‘a record of types of problems and solutions’ (at 228) rather than a definitive prescription. Chapters 1 and 2 discuss the two systems of law that have most informed international criminal law to date: the civil law and common law traditions. These chapters emphasize the situated nature of the law of evidence by emphasizing that neither of these overarching legal traditions is the monolith it may seem. This is particularly apparent in Chapter 1’s examination of three jurisdictional case studies (The Netherlands, France and Italy), which highlights the variations between civil law systems as well as the commonalities. This exploration of the antecedents of the law of evidence as applied by international institutions is complemented by Chapters 3, 4 and 5, which analyse key themes in modern international practice, including the evolution of written rules of procedure and evidence, interpretive methodologies and the use of precedent, and the changing context of evidential rules.