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Evidence in International Criminal Tribunals: Contrast between Domestic and International Trials

Published online by Cambridge University Press:  08 November 2013

JUSTICE T. A. DOHERTY CBE
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Abstract

This keynote address delivered to a Conference on Evidence in International Criminal Tribunals at University College Dublin in November 2011 considers how differently evidentiary issues are dealt with by international criminal tribunals from domestic tribunals. It is argued that, although there are jurisdictional differences affecting what international prosecutors have to prove before international criminal tribunals, many of the problems and difficulties that beset international tribunals are also to be found in domestic tribunals and both types of tribunal have similar duties and issues to grapple with.

Keywords

evidencecontrasts between domestic and international tribunals
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals: Symposium: Expertise, Uncertainty, and International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 4 , December 2013 , pp. 937 - 945
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 E.g. Prosecutor v. Brima et al., Trial Judgment, SCSL-04–16-T, 20 June 2007.

2 Prosecutor v. Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004–14-AR72(E), 31 May 2004.

3 Prosecutor v. Norman et al., SCSL-04–14-T.

4 T. Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (2009), 155.

5 Prosecutor v. Brima et al., SCSL-04–16-T, Transcript, 7–8 December 2006.

6 Presently a judge of the Special Court for Sierra Leone.

7 Student Advocate Magazine-Sierra Leone (2004), at 11.

8 SCSL-2003-01-T. See in particular defence submissions on 4 June 2008 when defence counsel, Mr Karim Khan, read a letter from Taylor complaining of lack of facilities etc. for his defence. Taylor had been declared indigent by the principal defender but his complaint concerning the defence facilities allocated to him led to withdrawal of defence counsel and a delay in his trial until another defence team was appointed.

9 Prosecutor v. Oric, Interlocutory Decision on Length of Defence Case, Case No. IT-03-68-AR73.2, 20 July 2005, para. 7 (footnotes omitted). Restated in Prosecutor v. Krajisnik, Appeals Judgement, Case No. 17-00-39-A, 17 March 2009, para. 106.

10 Prosecutor v. Milošević, Third Order on the Use of Time the by? Defence Case and Decision on Prosecution's Further Submissions on the Recording and Use of Time during the Defence Case, Case No. IT-02–54-T, 19 May 2005.

11 For example SCSL Rule 34(A)(ii) and Practice Direction on Allowances for Witness and Expert Witnesses Testifying in the Hague.

12 Art. 15(2) provides that ‘the Office of the Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations’. The prosecutor has provisions to enable her to locate witnesses and prepare evidence for trial.

13 N. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).

14 M’Boge, Y. and Jackson, J., Review of Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions, (2011) 38 Journal of Law and Society 456CrossRefGoogle Scholar.

15 Ibid., 458.

16 J. Easterday, Berkeley University Monitoring Group Report on Special Court for Sierra Leone (2008).

17 E.g. the word ‘mate’ in Australia is a friend, in English a friend or fellow worker, but in Sierra Leonean Krio it is a co-wife of the same husband.

18 This was also encountered in the International Criminal Court in Prosecutor v. Lubanga, ICC-01/04-01/06.

19 However, the Gambia made little or no changes to the very rudimentary court rules of procedure introduced there in 1990 leading, according to my findings, to unconscionable delay in the disposal of cases: Report to the Commonwealth Secretariat on Court Delay in The Gambia (1999).

20 See, e.g., Mundis, D. A., ‘From “Common Law” towards “Civil Law”: The Evolution of the Rules of Procedure and Evidence’, (2001) 14 LJIL 287CrossRefGoogle Scholar’, Orie, A., ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings before the ICC’, in Cassese, A., Gaeta, P., and Jones, J. R. W. D. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1439Google Scholar; Ambos, K., ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or “Mixed”?, (2003) 3 International Criminal Law Review 1CrossRefGoogle Scholar; Fairlie, M., ‘The Marriage of Common Law and Continental Law at the ICTY and Its Progeny, Due Process Deficit’, (2004) 4 International Criminal Law Review 243CrossRefGoogle Scholar; M. Caianiello, ‘Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models’ (2011) 36 N.C.J. Int’l & Com. Reg. 287; J. D. Jackson and S. J. Summers, The Internationalisation of Criminal Evidence (2012), ch. 5.

21 Art. 14 of the Statute of the Special Court for Sierra Leone.

22 Prosecutor v. Rutaganda, Appeals Chamber judgment, ICTR Case No. 96-3-A, 26 May 2003, para. 128.

23 P. Wald, ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Evidence in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harv. Int’l L J 535.

24 See Easterday, supra note 16.

25 T. Meron, ‘Judge Thomas Buergenthal and the Development of International Law by International Courts’, in T. Meron, The Making of International Criminal Justice--A View from the Bench: Selected Speeches (2011), 240–1.

26 Discussion at ICTY Global Legacy Conference, 15–16 November 2011.

27 Ibid.