The Abiding Problem of Witness Statements in International Criminal Trials

Recent amendments to the Rules of Procedure and Evidence for the International Criminal Court (“ICC”) give Trial Chambers the discretion to admit unexamined, party-generated witness statements in lieu of live testimony. The use of this evidence—which undermines the right of confrontation and prevents the judges from independently assessing witness credibility—is now a hotly contested issue in each of the Court’s ongoing trials. As ICC judges grapple with the thorny question of how to implement these new provisions without undermining the right to a fair trial, this Article, which is the first to examine the rule amendments and their early implementation, looks to the history of international criminal justice for answers. It traces the tension between more efficient written testimony and the importance of assuring procedural fairness from Nuremberg and Tokyo through to the present day. It focuses in particular on the experience of the International Criminal Tribunal for the former Yugoslavia (ICTY), whose rules served as a model for the ICC revisions, and it analyzes each of the rules imported from the ICTY from adoption to application. Through its thorough analysis of ICTY and ICC precedent, this Article identifies the fairness concerns that ought to shape the Court’s implementation of its recently revised rule, and highlights instances wherein the ICC has already fallen short of the mark. The goal of this article is to encourage the international legal community to revisit its tacit acceptance of ICTY practice as imitable precedent. This can lead to a debate that prompts more careful consideration of, and seeks out fairness-enhancing alternatives to, the use of witness statements at the International Criminal Court

Due Process Erosion: The Diminution of Live Testimony at the ICTY

Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live testimony. By highlighting the manner in which the shift lies at odds with the Tribunal’s adversarial system, this article establishes that the demise of live testimony at the ICTY interferes with the fair trial rights of the accused, in particular, the right to confront one’s accusers. It also refutes the assertion that the continental practice of admitting written evidence has analogical value with respect to the ICTY, raises the concern that the practice is actually an impediment to establishing the truth, and presciently raises concerns about the future diminution of live testimony at the Tribunal

The Hidden Costs of Strategic Communications for the International Criminal Court

In little more than a decade, the International Criminal Court (ICC) has received nearly 11,000 requests for its Prosecutor to conduct atrocity investigations around the globe. To date, no such communication has resulted in an official investigation. Nevertheless, the act of publicizing these investigation requests has proven to be an effective, attention-getting tool that can achieve valuable, alternative goals. This fact explains the increasing popularity of “strategic communications” — highly publicized investigation requests aimed not at securing any ICC-related activity, but at obtaining some non-Court related advantage. This Article, which is the first to identify this trend, explains why the international legal community has accepted the instrumental use of the ICC’s communication process with little reflection. It demonstrates why this tolerance is unwise by identifying the potential costs of strategic communications. It then establishes the significance of these concerns by illustrating the specific costs created by the most widely-publicized communication to date: the call for the ICC Prosecutor to investigate Pope Benedict XVI “for rape and other forms of sexual violence as crimes against humanity.

Rulemaking from the Bench: A Place for Minimalism at the ICTY

This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. This proposition is supported by reference to the case law of the Tribunal, including its handling of the claim of journalistic privilege, with a particular focus given to the fair trial rights of the accused

Alternate Judges as Sine Qua Nons for International Criminal Trials

When one of the three judges hearing the case against Vojislav Šešelj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge — who has not spent a single day participating in the proceedings — has familiarized himself with the trial record. This article demonstrates why the plan to proceed with a new judge is both procedurally illegitimate and markedly at odds with the ICTY’s statutory guarantee of a fair trial. It also establishes how it is that Tribunal proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and establishes why something must be done to attempt to mitigate the damage the Šešelj decision has wrought upon the reputation of the ICTY and the still nascent field of contemporary international criminal justice. Finally, this piece illustrates how the International Criminal Court is currently destined for its own Šešelj moment and contends that the proper way forward is through the liberal designation of alternate judges

Miranda and Its (More Rights-Protective) International Counterparts

The goal of this article is to encourage the international legal community to revisit its unexamined acceptance of strategic communications. This can lead to a debate that, at a minimum, should prompt Court supporters — specifically civil society members — to think carefully before engaging in conduct that creates dangerous consequences for the ICC

Alternate Judges as Sine Qua Nons for International Criminal Trials

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj\u27s case was both procedurally illegitimate and markedly at odds with the ICTY\u27s statutory guarantee of a fair trial. It also explains how ICTY proceedings came to be rendered vulnerable to the havoc created when a judge is lost mid-trial and consider show to mitigate the damage the Seselj decision has wrought upon the reputation of the ICTY. Finally, this Article illustrates how the International Criminal Court is currently destined for its own Selelj moment and contends that the proper way forward is through the liberal designation of alternate judges

The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage

The article focuses on the relationship status between the U.S. and the International Criminal Court (ICC) from being dormant due to being renewed. The renewal was evident from the U.S. representation at the 2009 ICC\u27s Assembly of States Parties annual meeting and the 2010 ICC Review Conference. Using the Rome Statute, the ICC has been granted subject matter jurisdiction over war crimes, crimes against humanity and genocide

Theorising Global Governance Inside Out: A Response to Professor Ladeur

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, account- ability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmod- ern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals that international institutions are suscepti- ble to capture by special interests. Furthermore, there are two central themes that animate the response to Professor Ladeur: the political nature of international institutions and the history of international law, and the role of institutions in this history