The Plea of Alibi in International Criminal Law as Viewed Through the Prism of the Common Law

Abstract

The plea of alibi has acquired a prominent place in the short history of modern international criminal law, just as it does in common law criminal trials. At the ICTR, for instance, it is pleaded in virtually every case. It is expected that alibi will continue to vex the processes of international criminal courts and tribunals, especially given the exclusive focus of international criminal law on individual criminal responsibility, much of which has to do with the presence of accused persons at scenes of planning, conspiracy, instigation, aiding and abetting and execution of crimes. The plea of alibi in international criminal law is still a concept under construction. Jurisprudence is rife with uncertain propositions, tentative analyses and incomplete ideas. In the circumstances, there is a need to pay close attention to this area of the law. A constant review is required, with the aim of improving the law of alibi for its future application in international criminal proceedings. An attempt at such a review is made in the present article. The author reviews, among other things, the meaning of the term ‘alibi’; whether it is a ‘defence’; the feature of notice of alibi; burdens of proof in alibi cases, the prosecutorial duty to disprove the alibi, the need for clarity in the application of the principle of prosecutorial duty to disprove the alibi, and whether there should be a prosecutorial duty to investigate the alibi when timely notice is given; as well as alibi and the right to silence. The author approaches the discussions from the perspective of the common law, primarily due to the prominence of the plea of alibi in common law criminal trials in contrast to inquisitorial criminal trials.