The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY

Abstract

This article focuses on the right to confrontation in trials before the International Criminal Tribunal for the former Yugoslavia (ICTY). There has been a steady erosion of right of the accused to cross-examination as a result of a number of amendments in the Rules of Procedure and Evidence and decisions handed down by various Chambers in the ICTY. This article reviews these matters by examining hearsay evidence, judicial notice, the admission of statements into evidence in place of oral testimony and the relevant provisions of the Statute of the ICTY and the Rules of Procedure and Evidence. [U]nder the cloak of ‘fairness’, a court may be led to construe troublesome curtailments of the rights of the accused in specific instances, which in turn might impact on fundamental rights of the accused. ICTY Appeals Chamber, 23 November 2007