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The Role of Evidence in War Crimes Trials: the Common Law and the Yugoslav Tribunal1

Abstract

With the passing into law of the War Crimes Act of 1991, the United Kingdom joined common law states such as Canada and Australia in conferring upon its domestic courts jurisdiction to try individuals suspected of having committed war crimes in Europe during the Second World War. Under the 1991 Act, proceedings for murder, manslaughter or culpable homicide may be brought, with the consent of the Attorney-General, against any person who, on 8 March 1990 or later, became a British citizen or resident in the United Kingdom, providing that the offence charged is alleged to have been committed between 1 September 1939 and 4 June 1945 in a place which was, at the material time, part of Germany or under German occupation. The Act further provides that the offence charged must have constituted a violation of the laws and customs of war under international law at the time it was committed. In addition, the Act stipulates that the nationality of the alleged offender at the time the alleged offence was committed is immaterial.

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3. Professor of Law and Head of the Department of Law, University of Lancaster, UK.

4. War Crimes Act, Chapter 13. Enacted 9 May 1991. The Act gives UK courts jurisdiction ‘in respect of certain grave violations of the laws and customs of war committed in German-held territory during the Second World War and for connected purposes’.

5. For the equivalent legislative provisions in Australia see, War Crimes Act, 1945, as amended by the War Crimes Amendment Act, 1988; for Canada see, Criminal Code, RSC, 1985, ss. 7 (3.71) – (3.77). Currently, there is no provision under US law for the criminal prosecution of US citizens suspected of having committed war crimes during the Second World War. However, such individuals may be denaturalised and extradited to a second country where that second country seeks the prosecution of the individual for war crimes and where a valid extradition treaty exists between the US and the second county. See Del Pizzo L.J., ‘Not Guilty — But Not Innocent: An Analysis of the Acquittal of John Demjanjuk and Its Impact on the Future of Nazi War Crimes Trials’, 18 Boston College International & Comparative Law Review (1995) p. 176. Under US law, an alleged war criminal may be denaturalised on proof that the individual had obtained entry into the United States either by a wilful misrepresentation or by the concealment of a material fact which, if disclosed at the time of entry, would have made the application for entry ineligible, see US v. Demjanjuk, 518 F Supp. 1362 (ND Ohio, 1981); US v. Demjanjuk, 680 F 2d 32 (6th Cir., 1982); Demjanjuk v. US, 459 US 1036 (1982); and Demjanjuk v. Petrovsky, 776 F 2d 571 (6th Cir., 1985), cited in Del Pizzo, supra. For the problems faced in Australia and Canada, see respectively, Polyukhovich v. The Commonwealth of Australia (1991) 172 CLR 501 and R v. Finta [1994] 1 SCR 701.

6. War Crimes Act 1991, ss. 1(1), 1(1)(a), 1(2) and 1(3).

7. Ibid.,s. 1(1)(b).

8. Ibid., s. 1.

9. Though the first to be convicted, Sawoniuk was the second person to be prosecuted under the 1991 Act. In April 1996, Szymon Serafinowicz was indicted for the murder of Jewish civilians in Belarus. However, the case against Serafinowicz collapsed in January 1997 after a jury at the Central Criminal Court found the defendant unfit to stand trial. The Attorney-General then entered a nolle prosequi (a permanent stay on the prosecution) due to Serafinowicz's failing mental health, reported to be dementia brought on by Alzheimer's disease. Serafinowicz subsequently died, aged 86, in August 1997. See Hansard, House of Lords, Vol. 596, 11 January 1999, Written Answers, col. WA 9. See also The Times, 3 September 1997; The Times, 2 April 1999.

10. Though implicated in the murder of many Jewish civilians, The Times, 9 and 11 February 1999, Sawoniuk went to trial facing four individual counts of murder. He was not alleged to have participated in the massacre of Jews in September 1942. Under English law, where an indictment carries several charges of murder, each count in the indictment must relate to the killing of a single person.

11. Unreported. The authors would like to thank Smith Bernal Reporting Ltd. for providing them with a copy of the trial Judge's summing-up and sentencing remarks.

12. This article will consider, in particular, the International Criminal Tribunal for the Former Yugoslavia (ICTY), see below part 7. For an evaluation of the contention that common law systems employ evidential and procedural rules which present higher barriers to conviction than trial procedures recognised in civil law legal systems see Damaška M., ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’, 121 University of Pennsylvania Law Review (1973) P. 506

13. The more salient features of common law, adversarial criminal proceedings and of civil law, non-adversarial criminal proceedings are considered in Damaška, ibid., pp. 513–589. See also Mann K., ‘Hearsay Evidence in War Crimes Trials’, 24 Israel Yearbook on Human Rights (1994) pp. 311313 at 297.

14. See Damaška, loc. cit. n. 12, pp. 513, 521, 536, 545, 551; Mann, ibid., pp. 310–311, 314.

15. See R v. Sang (1979) 69 Cr.App.R 282, p. 290.

16. For a discussion of the general rule respecting the division of functions between judge and jury in English criminal cases and exceptions to the general rule, see Tapper C., Cross and Tapper on Evidence, 8th edn. (London, Butterworths 1995) pp. 177–190; Zuckerman A.A.S., The Principles of Criminal Evidence (Oxford, Clarendon 1989) pp. 2946.

17. See Zuckerman, ibid., pp. 13–16. See also Damaška, loc. cit. n. 12, pp. 510–511.

18. War Crimes Act, 1991, s. 1(1)(b).

19. Transcript of Summing-up, Smith Bernal Reporting Ltd., (hereafter, Transcript), 29 March 1999, p. 27.

20. Ibid. The common law rule which obliges a trial Judge to issue such a direction is discussed in DPP v. Stonehouse [1978] AC 55 and in R v. Galbraith (1981) 1 WLR 1039.

21. Transcript, 29 March 1999, p. 27.

22. Tapper, op. cit. n. 16, p. 46. This formulation of the rule was approved by the House of Lords in R v. Sharp [1988] 1 All ER 65, p. 86.

23. On the operation of the hearsay rule in the Israeli war crimes trial of John Demjanjuk see Mann, loc. cit n. 13, pp. 312–313, 318–322. For discussion of how this issue is handled by the ICTY, see below.

24. The Times, 24 and 25 February 1999; Transcript, 30 March 1999, p. 15.

25. Transcript, 29 March 1999, pp. 27–28.

26. Police and Criminal Evidence Act, 1984, ss. 76, 78 and 82(3).

27. Ibid., s. 82(1).

28. Ibid., s. 76(2)(a) and (b). The burden of proof to show that the confession is admissible is upon the prosecution. Compare Rule 92 of the Rules of Procedure and Evidence (1994, as amended) of the ICTY, where the burden of proof on the issue is on the defendant.

29. Ibid., s. 78(1). The application of this section is not limited to confession evidence; it applies to any evidence on which the prosecution proposes to rely, R v. Mason (1988) 86 Cr.App.R 349, p. 354.

30. Police and Criminal Evidence Act, 1984, s. 82(3). As with the s. 78(1) discretion, the common law discretion to exclude is not limited to confession evidence.

31. R v. Sat-Bhambra (1989) 88 Cr.App.R 55.

32. The general common law rule that in criminal cases the legal burden of proving any fact essential to the prosecution's case rests on the prosecution and remains on the prosecution throughout the case was laid down in Woolmington v. DDP[1935] AC 462.

33. Transcript, 29 March 1999, pp. 35, 48. In stating that the jury should return a guilty verdict only if the prosecution could make them ‘sure’ of the defendant's guilt, Potts J was alluding to the standard of proof to be met by the prosecution in discharging the legal burden. In English law, whenever the prosecution carries the legal burden of proving an issue, the standard of proof or sureness to be met is ‘beyond reasonable doubt’. However, as Denning J observed in Miller v. Minister of Pensions [1947] 2 All ER 372, p. 373: ‘Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt … If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ See Art. 21.3 of the Statute of the ICTY.

34. Transcript, 29 March 1999, pp. 31–32, 46.

35. Transcript, 30 March 1999, pp. 28–37. See The Times, 19 February and 6 March 1999.

36. Ibid., p. 37. It is a common feature of war crimes trials that witnesses' testimony has to be translated. It is unlikely that a native English speaker would use the expression ‘I remember it beautifully’ in such a context.

37. Ibid., p. 43.

38. Ibid., pp. 47–49. See The Times, 10, 12 February, and 16 March 1999.

39. The court in Sawoniuk — including the jury of eight men and four women, the trial Judge, counsel and court staff — made British legal history when it travelled to Domachevo, in February 1999, in order to better understand the nature of the town, the terrain and relevant sites. This was the first time a British criminal court had convened on foreign soil, see The Times, 9 and 17 February 1999.

40. It is a matter for the judge to decide whether the jury could be assisted by expert evidence and whether the expert in question has the expertise to so assist, R. v. Stockwell (1993) 97 Cr.App.R 260, p. 264. It was emphasised by the Court of Appeal in Stockwell, at p. 266, that where expert evidence is received by a trial court, the trial Judge ‘should make clear to the jury that they are not bound by the expert's opinion and that the issue is for them to decide’. Expert evidence will not be admissible where the triers of fact can form their own opinion without the assistance of an expert, see R. v. Turner [1975] QB 834; R. v. Weightman (1991) Cr.App.R 291. Expert evidence and the opinion of an amicus curiae are more readily admitted in trials before a trial chamber of the ICTY because the triers of fact are professional Judges and not a jury.

41. The testimony of an expert witness will, invariably, be founded on hearsay or multiple hearsay since much of the witness' expertise will be derived from sources such as documents, reports and books. This, however, is not a basis in English law for excluding expert testimony, see R v. Abadom (1983) 76 Cr.App.R 48.

42. Transcript, 29 March 1999, pp. 42, 51–62.

43. Ibid., pp. 42–43.

44. Ibid., 29 March 1999, p. 32; 30 March 1999, p. 55.

45. Ibid., 29 March 1999, pp. 37, 66–72; 30 March 1999, pp. 37–38, 54–55, 71–74, 79–81.

46. Ibid., 29 March 1999, p. 38; 30 March 1999, pp. 57, 61–62.

47. Ibid., 29 March 1999, pp. 67–68; 30 March, 1999, pp. 1–4.

48. Ibid., 30 March 1999, pp. 62, 74.

49. Broadhurst v. R [1964] AC 441, p. 453, per Lord Devlin.

50. R v. Lucas [1981] 2 All ER 1008. See also R v. Goodway [1993] 4 All ER 894. It is not appropriate to issue a ‘Lucas direction’ when the defendant's lies are irrelevant to the prosecution's case, R v. Landon [1995] Crim. LR 338; R v. Mussell and Dalton [1995] Crim. LR 887; R v. Keeton (1995) 2 Cr.App.R 241; R v. Harron (1996) 2 Cr.App.R 457. Furthermore, a ‘Lucas direction’ will be inappropriate where the prosecution's case gives rise to the conclusion that the defendant is lying. This is because the defendant's lies must be considered separately from the main issue at trial, R v. House and Meadows [1994] Crim. LR 682.

51. See R v. Lucas ibid. at p. 1011; R v. Burge [1996] 1 Cr.App.R 163, pp. 173174.

52. Transcript, 29 March 1999, p. 38.

53. Ibid.

54. Ibid., 30 March 1999, p. 61.

55. Ibid., 29 March 1999, p. 39.

56. Ibid., 29 March 1999, pp. 39–40; 30 March 1999, p. 62.

57. Ibid., 29 March 1999, pp. 40–42.

58. Transcript, 29 March 1999, pp. 35, 37.

59. For a discussion of the part played by disputed identification evidence in the Israeli trial and subsequent acquittal of John Demjanjuk, see Mann, loc. cit. n. 13, pp. 298–309. For a discussion of the problems posed by disputed identification evidence before the ICTY, see below.

60. R v. Turnbull [1977] QB 224.

61. Ibid., p. 228.

62. Ibid., p. 231, per Lord Widgery. See also R v. Keane (1977) 65 Cr.App.R 247; R v. Hunjan (1978) 68 Cr.App.R 99; R v. Tyson [1985] Crim. LR 48; Reid v. R [1990] AC 363.

63. R v. Weeder (1980)71 Cr.App.R 228; R v. Breslin (1984) 80 Cr.App.R 226.

64. During his summing-up, Potts J warned the jury of the need for caution, with such comments as: ‘There is special need for caution when considering evidence of identification and convicting a defendant in reliance on it … it is possible that an honest witness may make a mistaken identification. … An apparently convincing witness can be mistaken … examine carefully the circumstances in which the identification … was made. … Please, members of the jury, be careful. Many years have passed. It is not easy to remember [events from] all those years ago. … Again, ladies and gentlemen, remember, it was a long time ago … Approach the evidence with care. Do not act on it unless it makes you absolutely sure. … Even if you are satisfied, so as to be sure that [a given witness] was not lying, that he was doing his best to tell the truth, you would still have to be sure that his evidence was accurate and reliable. … [P]eople do, after a time, speak forcefully of having seen things when close enquiry shows that their recollection must be wrong.’ Transcript, 29 March 1999, pp. 36–38, 85; 30 March 1999, pp. 11, 24, 38, 39.

65. A Judge is given authority to discharge individual members of the jury by section 16(1) of the Juries Act, 1974. The section provides that where any member of the jury dies or is discharged through illness, but the number of its members is not reduced below nine, the jury shall nevertheless be considered as remaining for all the purposes of that trial properly constituted, and the trial shall proceed and a verdict may be given accordingly.

66. By section 17(1)(a) of the Juries Act 1974, the verdict of a jury need not be unanimous in a case where there are not less than 11 jurors, 10 of which agree on the verdict. The procedure to be followed by the Judge in taking majority verdicts is set out in Practice Direction (Crime: Majority Verdicts) [1967] 1 WLR 1198.

67. Transcript, Sentencing Remarks, 1 April 1999, p. 32. By section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965, an offender aged 21 or over who is convicted of murder must be sentenced to imprisonment for life. Thus, since the abolition of the death penalty in the UK, life imprisonment is the mandatory sentence for murder. Under section 1(2) of the 1965 Act, a Judge can make a recommendation as to the minimum period that the convicted offender should serve in prison before being released on licence.

68. ‘Duško Tadić stood trial for the murder of thirteen people and the torture of nineteen others. In the United States, he would have been considered among the nation's worst mass murderers, (…).’ Scharf Michael, Balkan Justice (Durham NC, Carolina Academic Press 1997) p. 222.

69. For example, Art 14 of the Covenant on Civil and Political Rights 1966 or the European Convention on Human Rights 1950.

70. See Scharf, op. cit. n. 68, p. 67.

71. Rule 89 of the Rules of Procedure and Evidence (as revised and amended). Under English law evidence is said to be ‘probative’ if it ‘tends to render probable the existence or non-existence of any fact’, Criminal Law Revision Committee, Evidence (General), 11th Report, 1972, Cmnd. 4991, para. 14.

72. Ibid., Rule 89D.

73. This can be seen under English law in the general admissibility of hearsay in non-criminal cases which are tried by a Judge alone.

74. Tadić, The Jurisprudence, 5. Decision on Hearsay. Factors such as whether it is ‘voluntary, truthful and trustworthy’ should be considered.

75. Documentary evidence may well be treated differently, especially where it is in the form of an official record. See the ‘duty rosters’ as evidence in the Tadić case, Scharf, op. cit n. 68, p. 194.

76. Rule 89E is directed to the form of the statement and not its content.

77. See Prosecutor v. Akayesu 37 ILM (1998) p. 1399, at para. 24 (ICTR).

78. Op. cit n. 68, p. 220, emphasis supplied. For the issue of anonymous witnesses, see Chinkin Christine, ‘Amicus Curiae Brief on Protective Measures for Victims and Witnesses’, 7 Criminal Law Forum (1996) p. 179 and compare Leigh Monroe, Editorial Comment: Witness Anonymity is Inconsistent with Due Process, 91 AJIL (1997) pp. 8082.

79. A rule of mandatory corroboration is not the answer and the ICTY has (rightly) rejected this, see Prosecutor v. Akayesu, supra n. 77 at para. 24.

80. Rule 89D. See also Rules 92 (confessions) and 95 (improper methods of obtaining evidence), both of which are likely to be more significant than Rule 89D in excluding evidence. See for some discussion, Prosecutor v. Delalić et al., Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, para. 22. For decisions on evidential issues, Prosecutor v. Delalić et al., Judgment, 16 November 1998, dealing with the admissibility of an alleged confession, para. 69 and self-incrimination, at para. 66.

81. These are stated in the Statute of the ICTY, see Articles 10, 20, 21 and 23. See also the Rules of Procedure and Evidence, in particular, Section 3. Compare Articles 99, 100, 101, 103, 105 and 106 of Geneva Convention III, 1949 and Article 75, Additional Protocol I, 1977. The suggestion by Presiding Judge McDonald in Prosecutor v. Delalić, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, that the ICTY was ‘comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence’ (at para. 28) is, with respect, misleading. Where modem military tribunals (in most countries) are dealing with serious offences, as compared with mere breaches of military discipline, this is most unlikely to be the case

82. ‘The trials before the International Tribunal are conducted before professional judges, who by virtue of their training and experience are able to consider each piece of evidence which has been admitted and determine its appropriate weight,’ Prosecutor v. Delalić et al, Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, para. 20.

83. Ibid., para. 25.

84. A further 5 months passed before the verdict was delivered, see Scharf, op. cit n. 68, p. 214.

85. The trial ended on 30 July 1999. The verdict was delivered on 3 March 2000.

86. Prosecutor v. Delalić, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 22; Prosecutor v. Delalić et al., Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, at para. 15.

87. See generally, Wallach Evan, ‘The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline For International Legal Procedure?’, 37 Columbia Journal of Transnational Law (1999) p. 851; May Richard and Wierda Marieke, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Columbia Journal of Transnational Law (1994) at p. 725.

88. Cf., Art. 19 of the Charter of the International Military Tribunal at Nuremberg with Rule 89 of the ICTY Statute.

89. See the paper given by Major-General Gordon Risius at the Meeting of Common Law Experts in International Humanitarian Law and Criminal Law and Procedure, Geneva 1998, to be published by the ICRC, who emphasises the ‘need for specialist investigators who understand what is likely to be admissible and what is likely to be excluded’. Although General Risius was referring to the common law system, his view that there is a link between the investigation of offences and the rules of evidence in die trial itself cannot be gainsaid.

90. A Judge may sit without a jury to decide serious criminal offences in Northern Ireland if they are ‘terrorist type offences’, s. 2 Northern Ireland (Emergency Provisions) Act, 1973. He or she is, however, obliged to give reasons for any conviction. These reasons appear to be much more detailed than those given by a trial chamber of the ICTY, principally because the Judge gives reasons why a particular piece of evidence is or is not believed.

1 © I. Bryan P. Rowe, 1999.

2. Lecturer in Law, University of Lancaster, UK.

3. Professor of Law and Head of the Department of Law, University of Lancaster, UK.

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