As the Indian judge on the Tokyo Tribunal,Footnote 1 Justice Radhabinod Pal was one of the first jurists from the Global South to be appointed to an international criminal tribunal. Justice Pal's dissent is a largely forgotten critique of international criminal law. The importance afforded to the Nuremberg International Military Tribunal (Nuremberg Tribunal) further reinforces the obfuscation of Justice Pal's dissent.Footnote 2 Notwithstanding, given that Justice Pal was “an outsider to international criminal law … his visceral critique of the institutionalization of this system reveals the deep roots of third-world resistance”.Footnote 3 Justice Pal's approximately 1200 page dissent is significant, especially as international criminal law continues to encounter staunch criticisms of its own EurocentricityFootnote 4 and the reproduction of Western legal normativity.Footnote 5
Third World Approaches to International Law (TWAIL) offers a central challenge to international law's Eurocentricity. Broadly, TWAIL argues that international law is the handmaiden of colonialism and imperialism, which is built on racial hierarchies and double standards.Footnote 6 TWAIL scholars maintain that these architectures of exclusion persist in various locations and institutions, including settler colonial milieus.Footnote 7 While some TWAIL critiques of international criminal law may only have started in 2003,Footnote 8 there is nonetheless a concerted effort to expose this dynamic field's “idealization of Western liberal criminal law fused with a transcendentally utopian ethos”.Footnote 9 Asad Kiyani and other scholars have pushed to expose the double standards prevalent in the selection of international criminal casesFootnote 10 and various “operational selectivity” mechanisms of the International Criminal Court (ICC).Footnote 11 Other TWAIL scholars have challenged the ways in which post-colonial states have deployed the ICC as a means to “redefine” their internal armed conflict.Footnote 12 Vasuki Nesiah astutely argued that local voices are used by international criminal institutions to justify their pursuits of international justice.Footnote 13 In this expanding body of scholarly engagement,Footnote 14 the focus is on the more recent international criminal institutions and on broad conceptual concerns that examine the application of the doctrines of international criminal law,Footnote 15 the histories of international criminal law,Footnote 16 and institutional practices.Footnote 17 Precursors of TWAIL's animating ethos however can be found much earlier in the dissenting views of Justice Pal. To this point, James Gathii characterized Justice Pal's dissent “as building on resistance towards projections of both metropolitan power and authority over third world peoples”.Footnote 18 TWAIL scholars writing about international criminal law have also taken note of the “TWAIL sensibility” of Justice Pal's dissent.Footnote 19
In this paper, I seek to contribute to this field by bringing forward the continued relevance of Justice Pal's dissenting reasons in the prosecution of Japanese war criminals by the Tokyo Tribunal in 1948.Footnote 20 This paper moves beyond the conceptual and institutional TWAIL critiques of international criminal law. In particular, the central purpose is to bring forward Justice Pal's largely ignored views on the Rules of Procedure of the Tokyo Tribunal (Tokyo Tribunal Rules) and the Tokyo Tribunal's evidentiary rules as set out in Article 13 of Tokyo Tribunal Charter.Footnote 21 It is part of a TWAIL based effort to scrutinize the everyday practices of international prosecutions through the various rules of evidence and procedure.Footnote 22 In this vein, I examine the recently completed work of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and their respective rules of evidence and procedure to illustrate the continued importance of Justice Pal's dissent.
In the first section of this paper, Justice Pal's reasoning is located and situated within the broader academic literature on dissents in international law and, in particular, international criminal law. This discussion will illustrate how and why Justice Pal's reasons have been obscured, both as a useful dissent and as a site of scholarly engagement. I then locate Justice Pal's perspective within the earlier precursors to TWAIL, or what is now characterized as TWAIL I scholarship, to contextualize his views. The second section of this paper pursues Justice Pal's legacy as it relates to the rules of evidence and procedure in subsequent international criminal tribunals. This section first traces the evolution of the judicial power to draft and amend the rules of evidence and procedure from the Nuremberg and Tokyo Tribunals, and then examines the impact of this judicial power on the everyday functions of the ICTY and ICTR and how they determined truth. The ICTY and ICTR are two examples of the international community arriving at international “justice” through the United Nations Security Council where the ICC may not have the requisite jurisdiction.Footnote 23 More importantly, while some of the challenges raised in this section of the paper about the rules of evidence and procedure may be applicable to the ICC and other international criminal institutions like the Special Court for Sierra Leone, I focus my analysis on the Tokyo Tribunal, ICTY, and ICTR. The final section concludes.
Throughout this project, I have remained uncertain that the victims of mass violence can seek redress through some form of international criminal justice beyond the reach of the ICC in situations like Syria, Myanmar, and Sri Lanka.Footnote 24 When and if the international community does create an ad hoc tribunal (or something similar), greater attention must be had to the construction and amendment of the various evidentiary and procedural rules. While I remain hopeful in revisiting the work of Justice Pal, I cannot ignore the recent challenges to Western notions of justice, punishment, and the carceral state, wrought on by social movements like “Movements for Black Lives” and “Idle No More”.Footnote 25
I. Locating Justice Pal's Radical Dissent: Context and Reception
A special proclamation by General Douglas MacArthur created the Tokyo Tribunal based on the Allies’ declarations and the instrument of Japanese surrender.Footnote 26 The Tokyo Tribunal Charter and the Tokyo Tribunal Rules were “approved and issued” by General MacArthur. These rules were modelled on Nuremberg, and they set out the jurisdiction, the applicable crimes, and other necessary components of Western based adjudicatory processes. Footnote 27 General MacArthur more or less “rubber stamped” the appointment of eleven judges from the allied nations, including three judges from “Asiatic” countries in the Global South.Footnote 28 The indictment against the twenty-eight accused major war criminals was deposited with the Tribunal on 29 April 1946, and the trial quickly commenced on 3 May 1946.Footnote 29 As a condition of surrender, the Japanese Emperor was not prosecuted.Footnote 30 The twenty-eight accused persons were indicted on charges related to crimes against peace, war crimes, and crimes against humanity, as set out in the Tokyo Tribunal Charter, comprising of “fifty-five counts grouped into three categories”.Footnote 31
Two and half years later, having heard 419 witness testimonies and reviewed 4335 exhibits and 779 witness affidavits, the Tribunal rendered its majority decision on 4 November 1948.Footnote 32 It was not a unanimous decision, as previously hoped. Justice Bernard (from France) and Justice Pal dissented, Justice Röling of Netherlands partially dissented, the President of the Tribunal, Justice Webb of Australia, issued a separate opinion, and Justice Jaranilla of the newly independent Commonwealth of the Philippines issued a concurring opinion.Footnote 33 Justice Jaranilla was in a unique position as he was a victim of the Japanese violence and viewed the prosecution and punishment of Japanese from a drastically different perspective than Justice Pal.Footnote 34 Justice Cramer of the United States took control of the “seven member majority drafting committee” and Justice Webb's influence on the majority decision remains uncertain.Footnote 35
There was intrigue and drama in drafting the majority decision, where Justice Webb objected to the role of the military assistants, which Justice Cramer proposed. Justice Webb did not approve of the use of capital punishment either.Footnote 36 In the end, General MacArthur confirmed the Tribunal's decision to sentence seven of the accused to death,Footnote 37 and the remaining were given varying prison sentences.Footnote 38 The defence counsel nonetheless sought to appeal to the Supreme Court of the United States. The Supreme Court, however, declined to grant leave on the grounds that it lacked jurisdiction. Notably, there was an important dissent by Justice Douglas of the Supreme Court of the United States.Footnote 39
Of the three full and partial dissenting opinions of the Tokyo Tribunal, Justice Pal's reasons outlined the problem with Western universalism embedded within the majority decision.Footnote 40 This led Justice Pal to conclude that the “accused must be found not guilty of each and every one of the charges in the indictment and should be acquitted of all those charges”.Footnote 41 He viewed the prosecution of the Japanese accused as an act of “vindictive retaliation” and an exercise in victors’ justice.Footnote 42 For Justice Pal, the American exemption from prosecution for the atomic bombing of Japan, general colonial aggression, and territorial annexation by the Allies rendered any attempts to punish the Japanese as vindictive retaliation. More importantly, he was highly critical of the decision to mandate the Tribunal to prosecute undefined and retroactive crimes.Footnote 43 When it was time to render the judgment, Justice Pal's request to read out his dissent was denied.Footnote 44 Yet the “US censors['] [attempts] to suppress the dissenting judgment” were not successful and the “existence of the split was revealed” to the Japanese people.Footnote 45 The dissent, however, was still not published along with the judgment,Footnote 46 and only resurfaced a few years later.
In this section, I will first contextualize Justice Pal's view within the burgeoning literature on dissents in international law. I offer this discussion to demonstrate how the rediscovery of the Tokyo Tribunal and Justice Pal's dissent is unusual, even within international criminal law. Said another way, even though there is a recognized practice of engaging with dissenting views of international judges, the field of international criminal law has obscured the relevance of Justice Pal's dissent. To reinforce this point, I will explore the curious characterization of Justice Pal's dissent by both academic and non-academic commentary within international criminal law after the rediscovery of the Tokyo Tribunal some forty-five years later. I will then juxtapose how scholars with a Third World sensibility have sought to recover Justice Pal's dissent, notwithstanding its exclusion by mainstream and critical international criminal law scholars. While it is important to recover Justice Pal, it is also worthwhile to point out some of the challenges embedded within his reasons. In this vein, I locate Justice Pal as part of the “first generation of post-colonial international lawyers” and I illustrate the importance of Justice Pal for TWAIL in the context of international criminal law, albeit while taking note of the controversies in his dissent.Footnote 47
A. Locating Justice Pal's Decision among Dissents in International Law and International Criminal Law
Dissents play a crucial role in charting the future of legal normativity within specific fields of law in national jurisdictions.Footnote 48 There is no universal practice of including dissenting views in international courts and tribunalsFootnote 49 and, subsequently, there is no consensus on their usefulness.Footnote 50 Some international and regional courts allow dissents while others do not. For instance, the European Court of Justice does not disclose the judicial voting records, while the International Court of Justice and other courts have a significant history of dissents.Footnote 51 There is a fascinating history of the politics of dissents reaching as far back as the debates on creating the Permanent International Court of Justice.Footnote 52 This prompted R.P Anand to reflect on the necessity of allowing international judges to dissent, given the complex, “imprecise, fragmentary, uncertain and controversial” nature of international law.Footnote 53 Importantly, Anand suggested:Footnote 54
There is no use suppressing these differences. When judges do not agree, it is a sign that they are dealing with subjects on which society itself is divided. It is the democratic way to express dissident views. The right to speak is the ‘fortress of the personality of the free judge’ and that is the reason judges attach greatest importance to this sacred right. Judges should be honoured rather than criticised for following that tradition and proclaiming their differences so that all may read.
Within international criminal law, dissents can be deployed for a variety of purposes. Sometimes described as the “paradox of dissent”, the politics of dissents of international criminal courts and tribunals oscillate between maintaining the legitimacy of an institution to promoting judicial dialogue.Footnote 55 Dissents can be straightforward disagreements with the majority's view on a specific doctrine. In exceptional circumstances, dissents can take on a fundamental character.Footnote 56 Building on these typologies, some dissents within the international criminal law jurisprudence are “radical” in nature.Footnote 57 A radical dissentFootnote 58
is one that critiques the authorized version of the historical, political and cultural portrait set up by the trial and creates a civic space for counter-narratives to emerge and challenge the idiom in which the majority judgment speaks and which it takes as a given.
Justice Pal's “radical” dissent is significant because it examined the retroactive application of the prohibition of war crimes, the double standards in prosecuting the Japanese, and the legacies of colonialism and imperialism in the guise of universal prosecution of various crimes by the Japanese.Footnote 59 In this manner, the dissent challenged the authorized version of the “historical, political, and cultural” image that the Americans sought to generate with the prosecution of the Japanese war criminals.Footnote 60 More importantly, when placed within the literature, it is not at all surprising that Justice Pal's dissent (or the Tokyo Tribunal's decision for that matter) was not studied with the same eagerness as the Nuremberg decisions, especially when the international community was grappling with the genocides in the former Yugoslavia and Rwanda.Footnote 61 The dissent's challenge to Western universalism of international criminal law invites open questions about the field's very core. This challenge, coupled with Justice Pal's Global South “otherness”, makes it easy for Western scholars writing about international accountability in the “dark corners” of world to dismiss this dissent and relegate it to annals of history.Footnote 62
B. Scholarly Reception of Justice Pal's Dissent
Justice Pal's critique of international criminal law has only recently been academically scrutinized.Footnote 63 There was a return to the Tokyo Tribunal by international criminal law scholars, political scientists, and historians in the 1990s,Footnote 64 where some attention focused on the dissenting views of the judges of the Tokyo Tribunal, especially by scholars with close ties to the Global South.Footnote 65 While the return to the Tribunal's judgment can be viewed as an attempt to recover significant insights from the past, there has yet to be a complete reckoning with the arguments set out in Justice Pal's dissent by international criminal law scholars and practitioners.Footnote 66
Rather, the dissent has sparked varying levels of academic and non-academic dismissal.Footnote 67 For example, Justice Pal's scathing assessment of the Tribunal, in excess of 1200 pages, was characterized as “almost schizophrenic”.Footnote 68 Surprisingly, he was described as the “world's first mystic positivist” by a leading Western international criminal law scholar.Footnote 69 It is true that there are problematic moments within Justice Pal's dissent and, in this vein, some commentary has focused on Justice Pal's unfortunate use of quotes from “the slaver Jefferson Davis” in his conclusion.Footnote 70 Others have rightly picked up Justice Pal's “unforgiveable” and “irresponsible” dismissal of the severity of the “reports of the Rape of Nanking (Nanjing)”Footnote 71 and the more general dismissal of Japanese violence and its effects on innocent civilians.
The sanist (“almost schizophrenic”)Footnote 72 and racially charged (“mystic”) Footnote 73 references are part of the larger trend prevalent within international criminal law and other fields of public law.Footnote 74 TWAIL scholars have pointed to this larger trend endemic within the field of international criminal law, especially in the context of raceFootnote 75 and voice.Footnote 76 From a different point of view, Obi Okafor identified similar trends in the construction of knowledge in the context of United Nations human rights commissions, where expertise travels in a single direction from the North to South, causing a “one way traffic paradigm”.Footnote 77 Okafor's reflection is particularly salient and helps to rationalize why Justice Pal's dissent was not studied, while Justice Röling's was.Footnote 78 These features of international law broadly prompted Makau Mutua to reflect on the construction of the “savage” worthy of being saved in 2001.Footnote 79 These are not unique features to international law, rather they are part of a larger form of “false western universalism”Footnote 80 that perpetuate what Antony Anghie has characterized as the “dynamics of difference”.Footnote 81
The construction of Justice Pal as mentally ill or someone of the occult, coupled with his own promotion of prominent white supremacists like Jefferson Davies and the negation of the lived experiences of the victims of the Japanese, then worked to assiduously dispossess his radical claims set out in the dissent.Footnote 82 Justice Pal's pro-Japanese sympathies and his overt support of these movements during the post-War period did not help either.Footnote 83 By “disinheriting” Justice Pal, his dissent was not able to gain any traction to become part of the larger critique of the universalism of international criminal law.Footnote 84
A handful of scholars, with a Third World sensibility, view the dissent as a “fly in the ointment of the post-Second World War efforts at institutionalizing international justice”.Footnote 85 More recently, some have characterized Justice Pal's dissent as “deeply suspicious of this utopian state of order …”.Footnote 86 The most interesting examinations of his dissent have focused on his Third World perspective and animosity towards Western universalism. For example, Adil Hasan Khan has characterized Justice Pal as deeply suspicious of universal creeds and truths: “Pal demonstrated a ‘tragic ethos' in his persistent suspicion of assertions of a ‘universal’ ‘international community’ in whose name a ‘new’ truly ‘universal’ international law was sought to be authorized.”Footnote 87 Yet, what is missing from these types of critical engagement is a robust discussion of where to place Justice Pal's views within TWAIL. To locate his views, it is important to examine the history of TWAIL.
Antony Anghie and Bhupinder Chimni have suggested that TWAIL has transformed over time, and they have chronicled this evolution through two stages.Footnote 88 While recognizing the challenges of anachronism and the progress narrative built into this type of periodization,Footnote 89 the first generation of international lawyers and scholars grappling with the realities of newly independent former colonies were gathered under the moniker of “TWAIL I”. The second generation of TWAIL scholars have sought to follow in the footsteps of TWAIL I, all the while building new ground. More recently, Karin Mickelson has pointed to the emergence of a third wave of TWAIL scholars and beyond.Footnote 90
International law scholars like Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias were important figures in TWAIL I, where the impetus was to deploy international law as an emancipatory tool for the betterment of Third World peoples.Footnote 91 Under the rubric of TWAIL I, even though nineteenth century international law was used to exclude non-Europeans, there was a firm belief that international law was part of the fabric of Third World societies. It was believed that international law's power could be harnessed for good. Importantly, there was an emphasis on the sovereign equality of nations, underscored by the firm belief in international law. TWAIL II scholars, while travelling on the same path, elected to break new ground by developing “powerful critiques of the Third World nation-state, of the processes of its formation and its resort to violence and authoritarianism”.Footnote 92 By looking at the theory and doctrines of international law, scholars writing in this vein sought to clearly demarcate the racial hierarchy's endemic nature within international law, placing an emphasis on the lived experiences of the peoples of the Global South.Footnote 93 More importantly, by using history, they sought to connect international law to its civilizing mission and its colonial past.Footnote 94 The next generation of TWAIL scholars are pushing further ground and are making “sweeping indictment(s) of international law”,Footnote 95 all the while building bridges between marginalized communities through “praxis of place”, for example.Footnote 96
Justice Pal's dissent then can be situated within the first group of international law jurists. In coming to his conclusion of not guilty, there are two central themes that scaffold Justice Pal's dissenting view. The first is the double standards of the decision to prosecute, indict, and ultimately find culpable Japanese officials.Footnote 97 The second is the pure politics of victors’ justice.Footnote 98 The former theme manifests throughout his reasons with repeated references to colonial endeavours of the Allies, and how they, in fact, engaged in aggressive war in various parts of the world, before and during the Second World War. These forms of violence were clearly overlooked, while the Japanese were prosecuted. The second interrelated theme of victors’ justice is littered throughout Justice Pal's dissent with references to the atrocities arising out of the use of the atomic bombs on Hiroshima and Nagasaki. These themes work to assiduously expose the double standards of the charges laid against the Japanese. They are scaffolded throughout the analysis in setting out the problems with the competency of the established Tribunal and the meaning and scope of the law that the judges sought to apply. In pursuing the legality of Japan's conduct, Justice Pal deploys various opinions of legal experts ranging from Manley Hudson, Hans Kelsen, Hersch Lauterpacht, Aron Trainin, and others to parse through the veracity of the prosecution's case against the accused. Throughout his analysis, there are robust discussions on, for instance, individual criminal responsibilityFootnote 99 and customary international law,Footnote 100 all the while gesturing to the possibility of a future in which international law can be emancipatory.
Justice Pal's dissent is predicated on the sovereign equality of Japan and its conduct within the then existing framework of international law that he sought to apply. The dissent falls squarely within the first generation of TWAIL scholars. By locating the dissent in this context, some of the fault lines within Justice Pal's thinking become easier to trace, and place as well. More importantly, doing so allows for a fuller nuancing of Justice Pal's decision where we can identify some of the commonalities, all the while troubling the erasures of, for example, the lived experiences of the victims and the problematic, questionable, and racist citational practices.Footnote 101
In the next section, I take up Justice Pal's unique perspective on institutional powers granted to the judges of the Tokyo Tribunal to amend the rules of evidence and procedure. By focusing on the relevant sections on proceduralism and evidence in his reasons, I will exemplify the dangers of othering his radical dissent, further cementing my argument that Justice Pal remains a relevant figure in international criminal law.
II. Enduring Legacies of Justice Pal's Conceptual Challenges: Judges’ Quasi-Legislative Powers, Procedural Irregularities, and the Truth
Justice Pal's dissent is a complex multifaceted intervention that confronts central fault lines in the creation of the Tokyo Tribunal. Importantly, the dissent challenges the double standards and victors’ justice in the reasoning of the majority decision. Similarly, TWAIL scholars have devoted much effort to exposing the embedded racial hierarchies and double standards in international law and international criminal law.Footnote 102 Double standards can be broadly characterized as the inconsistent application of international law. The themes of double standards and victors’ justice that scaffold Justice Pal's dissent are prominently featured in TWAIL scholarship on international criminal law's theory, doctrine, and institutional design. For example, in 2003, Anghie and Chimni signalled to the double standards and victors’ justice evident in how the ICTY and ICTR operate.Footnote 103 They first locate these two tribunals within the ongoing relationship between the Global North and the Global South and the civilizing mission that continues to structure this relationship. For them, this of course includes the role of international institutions in either promoting the conditions that led to the violence in the former Yugoslavia and Rwanda or the role of the international community in ignoring these conditions. Anghie and Chimni argue that “there must be a consistent and objective approach to initiatives directed towards establishing individual criminal responsibility”.Footnote 104 They suggest that the lack of consistency, especially in the selectivity of cases, lead to the systemic reproduction of double standards and the confirmation that international criminal justice is selective justice, premised on North–South power dynamics.Footnote 105 More recently, other TWAIL scholars have pursued similar broad critiques of international criminal justice and its respective institutions. Some TWAIL scholars have explored the selectivity of prosecution in international criminal law and the “operational selectivity” in the ICC cases,Footnote 106 and are worried about the focus on the African war criminal to the exclusion of the Israeli and Sri Lankan Sinhala war criminals.Footnote 107
Both mainstream and critical international criminal law scholars have pointed to the double standards within the international criminal justice system as well.Footnote 108 Similar to TWAIL arguments, the double standards that they worry about oscillate between the cases that are prosecuted, to the accused persons that are selected for prosecution.Footnote 109 Selectivity is the biggest weakness of international criminal law where it is “predominantly wielded against weak, fallen and toppled autocrats and military leaders”.Footnote 110 Subsequently, the claim of double standards was not only vexing for the Nuremberg Tribunal and the Tokyo Tribunal, it was something that the ICTY and ICTR encountered regularly. The then ICTY prosecutor, Carla del Ponte's decision not to prosecute NATO leaders in the commission of international crimes was viewed by some as “amateur whitewash”.Footnote 111 In a similar vein, the decision to not prosecute the leaders of the Rwandan Patriotic Front was seen as problematic and pointed to the selective nature of international criminal prosecution.Footnote 112 Moving beyond the issue of selectivity in international criminal justice, there are other instances within the adjudicatory process that illustrate the double standards endemic within international criminal justice. For example, a review of the trial transcripts prompted Nancy Combs to suggest that the judges of various international criminal tribunals have a pro-conviction bias.Footnote 113 These examples then work to demonstrate the role of power and politics that drive the international criminal justice system.
Justice Pal was broadly concerned with the Tribunal's double standard in prosecuting the Japanese, while it ignored the colonial violence of the Allies. He was particularly vexed by the lack of prosecution of those responsible for the use of the atomic bombs. To Justice Pal, these double standards then worked to fuel a form of victors’ justice (notwithstanding the support of China and other newly impendent Global South states of India and the Philippines).Footnote 114 A unique aspect of Justice Pal's dissent is the focus on the everyday practices of the Tribunal and the rules of evidence and procedure. In this vein, Justice Pal took issue with the flexibility of the rules and its impact on the daily operation of the Tribunal. He chronicled the effects of the judges’ powers to draft and amend the rules as means to expedite the daily proceedings, the various procedural irregularities, and the determination of truth via witness testimony. These three conceptual challenges then work to reinforce the broader “Third Worldist” systemic critique central to his dissent: double standards and victors’ justice.
In this section, I examine the double standards arising out of the inconsistent application of the rules of evidence and procedure. Importantly, I trace these inconsistencies from the Tokyo Tribunal to the more recent ICTY and ICTR. The rules of evidence and procedure within a criminal proceeding are of the utmost importance, especially given the impact on the accused. While the evidentiary thresholds are much lower in, for example, non-criminal proceedings,Footnote 115 the presumption of innocence is an essential part of international criminal prosecution. The Chief Prosecutor of the Nuremberg Tribunal, Robert Jackson, is noted to have said “[t]he ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty”.Footnote 116 The ensuing analysis focuses on the specificity of rules and the role of the judges in drafting and amending the rules. In doing so, I will illustrate the larger systemic problems built into the Tokyo Tribunal and the two ad hoc international criminal tribunals rather than exploring the specificities of the rights of the accused.Footnote 117
I explore the enduring legacy of Justice Pal's dissent with a particular focus on the ICTY Rules of Procedure and Evidence (ICTY Rules) and the ICTR Rules of Procedure and Evidence (ICTR Rules) from a TWAIL perspective. By engaging Justice Pal's three conceptual problems with the Tokyo Rules, I first trace the evolution of the powers of the judges to draft and amend their respective rules of evidence and procedure and the resulting procedural irregularities and the admission of problematic hearsay evidence. In the first section of my analysis, I locate the origins of these powers to Robert Jackson, the Nuremberg Tribunal, and to a “Nuremberg legal sensibility”.Footnote 118 In the following two sections, I expose the effects of these powers and how they generate double standards through the malleability of the rules evidence and procedures. The second section examines the inconsistencies within the everyday judicial decisions, ranging from the type of adduced evidence to the number of judges needed to depose a witness. These inconsistencies within the everyday practices of the tribunals further corroborate the broader selectivity arguments leveled against international criminal prosecutions. In the third and final section, I examine the impact of allowing hearsay evidence. I first chronicle the results of allowing hearsay evidence at the Tokyo Tribunal and then examine the effects of allowing hearsay evidence at the ICTY and ICTR. The central aim of these sections is to pursue the legacy of Justice Pal's dissent as it relates to the Tokyo Tribunal Rules and the rules of evidence and procedure of international criminal tribunals.
A. Critique of the Institutional Powers of the Judges of the International and Military Tribunals
Several problems plagued the Tokyo Tribunal, starting with General MacArthur's heavy-handed role in its creation.Footnote 119 The Tokyo Tribunal's Charter provisions ensured that the Japanese accused were prosecuted quickly and efficiently, with relaxed evidentiary rules.Footnote 120 The nine rules of procedure accompanying the Tokyo Tribunal's Charter were rather superficial as well, especially for an international criminal trial that would eventually convict and then deploy capital punishment on those deemed culpable. Drawn from the Nuremberg blueprint, the powers allocated to the judges to amend the rules of evidence and procedure moreover caused day-to-day operational problems.Footnote 121 Approximately forty-five years later, identical problems were evident in the day-to-day operations of the two ad hoc international criminal tribunals created by the United Nations Security Council.
The United Nations Security Council established the ad hoc tribunals on the heels of the findings of the commissions of experts tasked with investigating the violent conflicts in the former Yugoslavia and Rwanda.Footnote 122 Similar to the Nuremberg and Tokyo Tribunals, the ICTY and ICTR statutes set out the applicable international crimes,Footnote 123 the organizational structure of the respective tribunals, and tribunal composition.Footnote 124 Importantly, they follow the Nuremberg Tribunal's approach to the rules of evidence and procedure. The ICTY and ICTR statutes allowed judges to draft the rules of evidence and procedure.Footnote 125 The judges then designed the amendment process through their respective rules.Footnote 126
The Rome Statute of the International Criminal Court was drafted differently. Article 51 of the Rome Statute explicitly guarantees that amendments to the rules of evidence and procedure are only possible with a two-thirds majority of the Assembly of States Parties.Footnote 127 While this approach to the rules may seem like an anomaly, an in-depth analysis is warranted to examine recent trends in the institutional dynamics of the ICC and the Assembly of States Parties. For example, eight amendments were adopted by the Working Group on Amendments of the Assembly of States Parties, while other proposed amendments by the Court have yet to be considered and or adopted.Footnote 128
I trace the origins of the “quasi-legislative” powers of the judges to draft and amend the rules of evidence and procedure back to Robert Jackson and the Nuremberg Tribunal in this section.Footnote 129 By modelling the ICTY Rules and ICTR Rules on the Nuremberg Tribunal and granting quasi-legislative powers to the judges, the double standards and unfairness that Justice Pal was concerned with continued as international criminal prosecutions moved forward. Justice Pal's view that a liberal approach to the rules did not lead to happy results can be more evident by chronicling the origins and effects of these quasi-legislative powers. In fact, these are the same exact concerns that TWAIL scholars set out vis-à-vis the double standards in the “selection of cases” and “operational selectivity”, albeit in the doctrinal and institutional context.Footnote 130
1. Judicial power to draft and amend the rules: Inheriting “utmost liberality”
Evidentiary and procedural rules are the backbone of an international criminal tribunal. They are essential in setting out how the institution performs its basic function of determining the truth and culpability. To that effect, Article 7 of the Tokyo Tribunal Charter was modelled on its Nuremberg counterpart.Footnote 131 Article 7 allowed the judges to draft and amend their rules, provided the amendments were consistent with the Charter. Based on the Nuremberg precedent, the Tokyo Tribunal Charter offered, moreover, further guidance to the judges on how to conduct the trial (Article 12) and receive evidence (Article 13 and Article 15(d)). In dealing with the admissibility of evidence, Article 13(a) enabled the Tribunal to move beyond technical rules of evidence and proclaimed that the Tribunal “shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value”.Footnote 132 Expeditiousness was thus built into the Charter, as part of the Allies efforts to deliver victors’ justice quickly. Judges were granted these “quasi-legislative” powers to ensure that the proceedings were expedited.Footnote 133
Importantly, the desire for expeditious trials can be traced back to the drafting of the Nuremberg Charter. Robert Jackson's meticulous notes on the International Conference on Military Trials (June to August 1945) illustrate the importance of expeditious proceedings. Jackson made the following statement to this effect: “[w]e do not want technical rules of evidence designed for jury trials to be used in this case to cut down what is really and fairly of probative value, and so we propose to lay down as a part of the statute that utmost liberality shall be used”.Footnote 134 Russian General Nikitchenko responded in agreement: “[w]e think it is perhaps very advisable to remind the judges that there may be a possibility of attempts by the Fascists to use the courts as a sounding board for accusing the Allies of imperial designs”.Footnote 135 This approach to the rules of evidence and procedure at Nuremberg then travelled to the Tokyo Tribunal via General MacArthur and other American officials tasked with steering the prosecution of the Japanese.
The “liberality” approach to the rules caused significant concern for the Tokyo Tribunal defence lawyers. They worried about the judicial determination of probative value afforded to their evidence.Footnote 136 Defence lawyers were concerned that their evidence would not have the same weight as that of the prosecutor (as discussed in the next sections). Put differently, given the criminal nature of these proceedings, Tokyo Tribunal judges had a duty to ensure that the most relevant evidence with probative value was accepted. In this vein and in referring to the powers granted to the judges, Justice Pal arrived at an important conclusion in his dissent: “though the Charter sought to make us independent of all artificial rules of procedure, we could not disregard these rules altogether. The practical conditions of the trials necessitated certain restrictions.”Footnote 137 These problematic results centred on the Tribunal's understanding and determination of probative value of evidence. In fact, Justice Pal worried about the meaning and scope of probative value of evidence that was used to determine the criminal culpability of the accused. To this effect, Justice Pal powerfully remarked that with “these provisions of the Charter we admitted much material which normally would have been discarded as hearsay evidence”.Footnote 138 The ability of the judges to amend the rules, at times mid-way through the process, reinforces the animating themes of Justice Pal's dissent. On the one hand, the double standards allow the judges to direct the rules to benefit the prosecution, and, on the other, the malleability of the rules reinforce the idea of victors’ justice, where the outcome is certain.
As part of the “inheritance” from the Nuremberg Tribunal, similar problems arising from the malleability of the rules of evidence and procedure can also be found within the ICTY and ICTR.Footnote 139 Notwithstanding the need to expedite the proceedings, the real life results were the exact opposite that resulted in the double standards that Justice Pal was worried about.
2. Inheriting legacies of the past: utmost liberality at ICTY and ICTR
Article 15 of the ICTY Statute enabled the judges to “adopt rules of procedure and evidence for the conduct of the […] trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters”.Footnote 140 The ICTR statute borrowed from the ICTY statute's language on the rules of evidence and procedure.Footnote 141 Drafted by the judges, the ICTY Rules consist of 127 provisions, while the ICTR Rules include 126 provisions. Slight variations aside, the respective rules specify the required pre-trial, trial, and appeal procedures. These rules cover every aspect of the tribunals’ work, from investigations to appeals. ICTY and ICTR Rule 6 allowed judges to amend the provisionsFootnote 142 and, unlike the rules of the Tokyo Tribunal, it established a clear amendment process.Footnote 143 The rules thus form the normative architecture that enables the tribunals to function effectively.
For example, judges of the ICTY would gather to elect the President of the Tribunal, discuss policy and administrative issues, and amend the rules when required through the plenary sessions.Footnote 144 These sessions were confidential, and public records of the discussions and decisions are unavailable. As the tribunals started their proceedings, an Intersessional Working Group for the Amendment of the Rules, with a panel of five judges, was established to deal with any issues. This working group later morphed into the Rules Committee that took on the role of “a permanent working group for the plenary of judges in respect of changes to the Rules of Procedure and Evidence”.Footnote 145 The Rules Committee included three judges from the Trial Chambers, the Vice-President, and the President of the ICTY.Footnote 146
Notwithstanding the cosmopolitan nature and history of the rules,Footnote 147 several important criticisms emerged as the tribunals carried on the work. Certain criticisms were concerned with the cost of justice,Footnote 148 while others focused on length of the proceedings.Footnote 149 As a result, in April 1999 the United Nations General Assembly requested the United Nations Secretary General to create an “Expert Group” to evaluate the operation of both tribunals, given the delays in prosecution and the drain on the financial resources needed to continue the international prosecutions.Footnote 150 The Expert Group made a number of recommendations to improve the daily operations of the trials.Footnote 151 The main crux of the Expert Group's report was on the role of the judges and the adversarial system, and the recommendations focused on shifting the judicial role within the Tribunals.Footnote 152
In response, the ICTY and ICTR judges sought to tackle delays and other inefficiencies within the adjudicatory process by turning to “managerial” judging.Footnote 153 They adopted a managerial role and amended the rules of evidence and procedure in the hopes it would bring about cost cutting and efficient processes. These reforms to the rules were precipitated by the urgency of the United Nations Security Council's completion strategy that sought to limit the length of trials and reduce the costs of international justice.Footnote 154 The desire for expeditious prosecutions is part of the history of international criminal prosecutions and can be traced back to the Nuremberg Tribunal and Robert Jackson's “utmost liberality” approach to the rules of evidence and procedure.Footnote 155 The Expert Group's report and the United Nations Security Council's completion strategy then reinforced the application of the “utmost liberality” approach within the ICTY and ICTR.
To prevent delays, judges introduced reforms and amended the rules to allow increased judicial access to case information. Simultaneously, the reforms to the rules provided the judges with new powers to set deadlines and work plans, thereby, for example, limiting the number of witnesses. These changes, it was argued, “would reduce the length of both pre[-]trial[s] and trial[s]”.Footnote 156 In this context, the ICTY judges, for example, amended their respective rules on forty-eight different occasions.Footnote 157 In contrast, the ICTR Rules were amended twenty-three times during the life of the Tribunal.Footnote 158
The move to managerial judging did not, however, lead to more efficient or expeditious trials. On the contrary, the changes, with the added new steps built into the rules and the adjudicatory process, prolonged the duration of trials. The judges lacked specific information about their cases. The prosecution and defence counsel resented and resisted their diminished roles. This led some commentators to conclude that the “managerial judging reforms did not deliver any of their promised outcomes”.Footnote 159
These everyday changes then generate two important issues that strike at the heart of the operationalization of the double standards. First, judges acting on their own volition changed the rules of evidence and procedure at various stages of the prosecution.Footnote 160 While it is true that the central goal of these tribunals was to prosecute the perpetrators and render justice in an “ad hoc” manner,Footnote 161 the judicial power to amend the rules leave open questions about the scope of the legitimate authority of judges. As I illustrate in the next section, there are inconsistencies throughout the processes of ad hoc tribunals where the accused were subject to varying degrees of procedural standards. Second, even within the most liberal account of the rule of law (whether in the domestic or international context), an accused has the right to evidentiary disclosure and, more importantly, to know the process that will be used to determine individual criminal responsibility.Footnote 162 The death sentences meted out by the Tokyo Tribunal illustrate the importance of safeguarding procedural standards.
This drive for expeditious adjudicatory process formed the backdrop to Justice Pal's dissent. He worried about the flexibility of the rules of evidence, how the procedural rules were used to diminish the protections afforded to the accused, the impact of the Tribunal's decision on the accused's life and liberty, and the legitimacy of the Tokyo Tribunal.Footnote 163 In a similar manner, the move to managerial judging in the ICTY and ICTR did not yield quick or cheap international justice. Rather, these changes exacerbated the situation within these two tribunals, which adversely affected the rights of the accused, prolonged the proceedings, and challenged the legitimacy of the process. Much more broadly, the ability of judges to change the rules mid-way through the adjudicatory process, or admit hearsay evidence, ultimately undermines the central goals of an international criminal prosecution. In fact, the inconsistent application of the rules of evidence and procedure, especially in the context of the North–South divide reinforces the existing colonial mentality that those from the peripheries do not need robust adjudicatory processes. Rather, the judicial changes to the rules suggest that processes can be developed as the prosecution unfolds, where judges sitting in plenary can decide the fate of an accused. In the following section, I chronicle the daily effects of amending of the rules regularly.
B. Procedural Irregularities at the Tokyo Tribunal, ICTY and ICTR: The Everyday Changes to the Rules
The flexibility of the rules described above precipitated daily procedural irregularities at the Tokyo Tribunal and the two ad hoc tribunals. These procedural irregularities can, moreover, be traced back to the notion of “utmost liberality” formulated by Robert Jackson, outlined in the previous section. This idea of utmost liberality would eventually travel to the ICTY and ICTR. I set out the procedural irregularities within the Tokyo Tribunal and then turn to the two ad hoc tribunals, focusing procedural discrepancies within and during the adjudicatory process. By chronicling the inconsistency in the application of the rules, I reveal the systemic problems within these tribunals and the resulting pro-conviction bias.
1. Procedural irregularities at the Tokyo Tribunal
Justice Webb commented about the controversial nature of the everyday changes to the rules by the Tokyo Bench. In fact, he was very much alive to the effects of these procedural irregularities, as evidenced by his comments from the bench. His reflection is worth quoting in its entirety as it illustrates the challenges brought on by a flexible approach to the rules of procedure:Footnote 164
I am not here to offer any apology on behalf of the Tribunal, but as you know the Charter says we are not bound by any technical rules of evidence. […] All we can do on each piece of evidence as it is presented is to say whether or not it has probative value, and the decision on that question may depend on the constitution of the court. Sometimes we have eleven members; sometimes we have had as low as seven. And you cannot say, I cannot say, that on the question of whether any particular piece of evidence has probative value you always get the same decision from the seven judges as you would from eleven. I know that you would not… You cannot be sure of what decision the court is going to come to on any particular piece of evidence not absolutely sure—because the constitution of the court would vary from day to day and I would be deceiving you if I said decisions did not turn on how the court was constituted from time to time. They do. On the other day in court on an important point I know the decision would have been different if a Judge who was not here was present. How are we to over-come that. We cannot lay down technical rules. We might spend months in trying to agree upon them and then fail to reach an agreement. The Charter does not allow us to adopt them in any event. It is contrary to the spirit of the Charter. The decision of the Court will vary with its constitution from day to day. There is no way of overcoming it.
The inheritance of Robert Jackson's “utmost liberality” approach to the rules of evidence and procedure from the Nuremberg Tribunal then had a significant impact on the day-to-day operations of the Tokyo Tribunal.Footnote 165 Justice Webb's acknowledgment of the daily realities of the Tribunal compounded an already difficult situation brought on by the flexibility built into the rules, all of which fuelled Justice Pal's scathing dissent. In his analysis of the Tokyo Tribunals rules, Justice Pal was concerned with the ways in which these procedural irregularities had a significant impact on the accused and the proceedings, depending on which judge was present on the bench on a particular day.
For example, on 26 June 1946, defence counsel sought to cross-examine a prosecution witness on a document that was yet to be introduced into evidence.Footnote 166 The judges accepted the prosecution's objection. This decision was in accordance with the Tokyo Tribunal Rules.Footnote 167 Three days later, the Tribunal made a similar decision. In this instance, when cross-examining a prosecution witness, defence counsel asked questions based on another yet to be introduced document. The prosecution objected as the document needed to be served twenty-four hours in advance. The judges again accepted this objection. Notwithstanding these rulings, when the prosecution attempted to rely on yet-to-be introduced documents in cross-examination, the Tribunal departed from its two earlier decisions in June. In fact, the Tribunal noted that “the rule as to processing and serving a copy of the document in advance did not apply”.Footnote 168
These procedural inconsistencies animated Justice Pal's dissent and his specific focus on the construction of the rules, the application of the procedure, and, ultimately, their negative impact on the proceedings. In fact, these types of irregularities, where the judges of the Tribunal elect to change the rules daily based on what would amount to be an alleged pro-prosecution bias, assiduously reinforces the themes that form the bedrock of his dissent.Footnote 169 These double standards remove the due process rights of the accused and ensures that a form of victors’ justice is meted out.
2. Procedural irregularities at the ICTY and ICTR
Turning to the ICTY, similar examples of these types of everyday procedural irregularities are evident. For example, during the deposition of two witnesses in Prosecutor v. Zoran Kupreskic (Kupreskic), the presiding judge informed the Chambers that one of the members of the Bench had fallen ill and was “unlikely to be able to attend the hearings during the remainder of the week”.Footnote 170 The ICTY Statute requires three judges to serve in a Trial Chamber. Given the circumstances, the presiding judge encouraged the parties to proceed, relying on Rule 71. This Rule allows for the appointment of a “Presiding Officer” to depose a witness “in exceptional circumstances and in the interests of justice”.Footnote 171 To the objection of the defence counsel, the prosecutor made an application to this effect. Defence counsel objected because the witnesses would testify on specific facts relating to the charges against the accused.Footnote 172 The third judge of the Trial Chamber needed to be present to decide if the witnesses’ testimonies were credible and to determine probative value, which goes to the heart of the determination of guilt in the commission of an international crime. Based on the prosecutor's application, the two judges of the Trial Chamber decided to receive the witness testimonies without their third colleague.Footnote 173
The defence appealed the decision to include the deposed testimony. The ICTY Appeals Chamber agreed with the accused. Relying on the ordinary meaning of the Statute, the Appeals Chamber noted the following:Footnote 174
Rule 71 provides that a Trial Chamber may order that a deposition be taken, whilst Article 12 of the Statute stipulates that a Trial Chamber shall be composed of three Judges. Given the plain and ordinary meaning of the latter provision, a Trial Chamber is only competent to act as a Trial Chamber per se if it comprises three Judges. Consequently, the requirement in Rule 71 that an order for depositions to be taken may only be rendered by a Trial Chamber, has not been met. That a written decision confirming the ruling was issued by the Trial Chamber the following day could not ipso facto cure this illegality. Where the Statute or the Rules prescribe that a matter is to be decided by a Trial Chamber, two sitting Judges may not do so on the part of the Trial Chamber, save in the case where the Trial Chamber has received prior authorisation by the President. Such authorisation may, however, only be given in respect of routine matters pursuant to Sub-rule 15(E). In the present case, no such authorisation had been given by the President, and, in any event, the making of a decision to proceed by way of deposition with regard to the examination of witnesses giving evidence on facts relating to the specific charges made against an accused, thereby having a direct bearing on the determination of the guilt or innocence of the accused, does not, in the view of the Appeals Chamber, constitute “routine matters” within the meaning of Sub-rule 15(E).[…] The Appeals Chamber, therefore, finds that the ruling was null and void since it was rendered without jurisdiction with regard to defence witnesses Pero Papic and Goran Males …
In November 1999, the judges sitting in plenary amended Rule 15 and added Rule 15bis (Absence of a Judge). This new rule changed the earlier ICTY Appeals Chamber's five member panel decision in Kupreskic. In fact, Rule 15bis was much more expansive in scope. If one of the judges is ill or unable to attend, the new Rule allowed the remaining two judges of a Trial Chamber to “continue in the absence of that judge” (for no more than five days), if they are satisfied that doing so would be in the “interest of justice”.Footnote 175 The decision to amend the rules in this manner then worked to change the Kupreskic Appeals Chamber decision to rely on the ordinary and plain meaning of the Statute.
There are other examples in which the judges have sought to change their previous decisions.Footnote 176 Gideon Boas suggests that judges have altered the chambers’ decisions in “core areas of the law, including the procedure for the delivery of discrete sentences for each finding of guilt by a trial chamber; amending the provisions on the right of appeal”.Footnote 177 Kupreskic and other similar cases illustrate the broader implications of judicial inconsistency in applying the rules of evidence and procedure in admitting evidence. These inconsistencies adversely affect, for example, tribunal practice, tribunal jurisprudence, and, importantly, the rights of the accused.
Decisions like Kupreskic highlight the problems brought about by allowing the judges to amend the rules of evidence and procedure. Justice Pal first articulated these issues as a result of the changes to the rules midway through the Tokyo proceedings detailed earlier.Footnote 178 He was concerned with the way procedural rules were changed to allow for expeditious prosecution. During the Tokyo Trial, the procedural guarantees were not seen as important (as I have illustrated in the earlier section on the critique of the institutional powers of the judges). These examples then enliven Justice Pal's central concerns articulated forty-five years before the judges of the ICTY and ICTR started to draft and amend their respective rules.
Judges were able to change the process that sought to determine the credibility of the witness and the veracity of their testimony midway during the proceedings. Moreover, these changes illustrate the double standards that were built into the international criminal justice system, which Justice Pal and many more recent TWAIL interventions have sought to illustrate. A criminal justice system must afford the accused with a clear understanding of the process that will be followed to determine culpability. This process was not clear, as the judges made changes to procedures as they sought to determine criminal culpability. In the next section, I take up the probative value assigned to witness testimony that forms the factual basis of the determination of truth by these three tribunals.
C. Critique of Truth: Probative Value of Witness Testimony
Beyond the everyday changes to the rules adopted by the Tribunal, Justice Pal articulated several other important shortcomings with the Tokyo Tribunal's determination of truth in prosecuting Japanese war criminals. In particular, he was deeply critical of how the Tribunal determined the probative value of the 419 witness testimony and 779 witness affidavits.Footnote 179 By allowing hearsay evidence, the Tokyo Tribunal may have potentially compromised the importance of truth, especially in the prosecution of war crimes. By adopting the practices of the Nuremberg Tribunal as a model for the ICTY and ICTR, the “utmost liberality” approach detailed earlier is once again visible and also the cause of significant problems in meting out justice for the genocide in Rwanda and the former Yugoslavia. In the following section, I set out Justice Pal's concerns with hearsay evidence and trace the effects of allowing hearsay at the ICTR.
1. Hearsay evidence at the Tokyo Tribunal
In exposing some of the fundamental flaws of the determination of probative value, Justice Pal focused on the use of the diary of Koichi Kido and the Saionji-Harada memoir by the Tokyo Tribunal's prosecutors. Kido held several important ministerial positions within the government of Japan. He served as the adviser to the Emperor, the Lord Keeper of the Privacy Seal.Footnote 180 During the proceedings, Kido's diary, which covered 1930 to 1945, was introduced as evidence. The prosecution relied on the diary because of Kido's role within the government and his dealings with other Japanese officials at that time.Footnote 181 The diary was used to substantiate conversations that Kido had with Japanese officials facing similar charges.Footnote 182 Justice Pal was, however, worried about the trustworthiness of the diary. He thus noted: “[w]hen, however, the author proceeds the whole course either of a life or any event, there may come an unconscious influence of his creation which may greatly affect the record detracting from its initial trustworthiness”.Footnote 183
Similarly, Justice Pal was concerned about the prosecution's use of Saionji-Harada's memoir to construct their respective case against the accused.Footnote 184 The memoir was introduced into evidence by the prosecution as part of its rebuttal evidence. The memoir reported various conversations with different Japanese officials during the war, as experienced and chronicled by the secretary to Prince Kimmochi Saionji, Baron Harada.Footnote 185 These accounts were transcribed by Baron Harada's stenographer. Harada dictated the text from 1930 to 1940, based on his interactions with various government personnel.Footnote 186 These notes were then reviewed by Harada and later corrected by Prince Saionji.Footnote 187
For Justice Pal, the hearsay evidence in the memoir had an insidious effect that made the entries completely “worthless”.Footnote 188 At times, Harada was not present when these statements were made. More importantly, the accounts of the author were edited by Prince Saionji,Footnote 189 even though he was not part of these conversations. Subsequently, this portion of the dissent focused on the nature of the evidence, prompting the following crucial reflection by Justice Pal: “I for myself find great difficulty in accepting and acting upon evidence of this character in a trial in which the life and liberty of the individuals are concerned.”Footnote 190
2. Hearsay evidence at the ICTY and ICTR
Similarly, hearsay evidence was allowed through the ICTY Rules and ICTR Rules. Rule 89 of the ICTY and ICTR sets out the framework to adduce evidence.Footnote 191 In particular, this provision adopts a “free proof approach”, where the trial chamber admits any evidence with probative value.Footnote 192 There is, however, no clear, consistent, and discernible practice on admitting evidence.Footnote 193 Both the ICTY and ICTR admitted hearsay evidence since their inception,Footnote 194 albeit with some caution.Footnote 195 The tribunals’ jurisprudence suggests that each chamber had to be satisfied with the reliability of evidence, “given the content and character of the evidence for it to be admitted”Footnote 196 – reflecting the tribunals’ recognition of the limited probative value of hearsay evidence. For example, in The Prosecutor v. Thoneste Bagosora, the ICTR Trial Chamber noted that “there are limited avenues for testing the reliability of this [hearsay] … evidence”.Footnote 197
Various scholars have examined witness testimony before the two ad hoc tribunals.Footnote 198 Like Justice Pal, these scholars were particularly worried about false witness accounts and possibilities of perjury.Footnote 199 For example, Alexander Zahar highlighted several instances of perjury by ICTR witnesses.Footnote 200 The ICTR may have opted for a relaxed approach to witness testimony, recognizing the context in which the witnesses testified. Further, the passage of time and witness trauma may have contributed to witnesses’ fading memories. Due to the horrific nature of the Rwandan genocide, these were practical realities that the Tribunal had to grapple with.
In an analogous manner, Combs pinpointed significant dangers in using hearsay evidence in 2010, by examining the trial transcripts from the ICTR.Footnote 201 In this groundbreaking study, Combs points out several problems that the ICTR faced. For example, how to contend with a Rwandan eyewitness with different socio-cultural practices? As a result, “[i]n sum, Trial Chambers often seem content to base convictions on highly problematic witness testimony”.Footnote 202 This was because the witnesses were unable to provide detailed accounts of the dates, times, and specific locations of the events they were attesting to.Footnote 203 More importantly, based on Combs’ careful review of trial transcripts, the ICTR witnesses could not place the accused accurately at the scene.Footnote 204 This is a necessary and essential requirement for individual criminal responsibility.
Throughout the life of the ICTY and ICTR, hearsay witness testimony was used to indict, prosecute, and then determine the guilt of accused perpetrators of international crimes.Footnote 205 Within the ICTR, the judges accepted problematic witness testimonies for a whole host of reasons. Based on the history of the conflict, the Hutu perpetrators were responsible for the Rwandan genocide. Even in instances where there are significant problems with the testimonies, Combs suggests that the “Trial Chambers explain these [inconsistencies] away as products of the passage of time, the frailty of memory and errors introduced by investigators and interpreters.”Footnote 206
Spanning half a century, all three tribunals encountered difficulties by admitting hearsay evidence. By exploring parallel examples from Justice Pal's dissent and the practices of the more recent tribunals, I illustrated the continuing legacy of the flexible approach to hearsay evidence. In highlighting the dangers of adduced hearsay evidence, it is prudent then to return to Justice Pal's words referenced earlier: “I for myself find great difficulty in accepting and acting upon an evidence of this character in a trial in which the life and liberty of individuals are concerned.”Footnote 207
III. Conclusion: Pal's Continued Relevance to Twail and Critique Of International Law
Framed as an excavation of a significant intervention in the aftermath of the Second World War, I have argued that Justice Pal's dissent remains relevant, especially for scholars interested in a Third World view of international criminal law. By moving beyond TWAIL's conceptual and institutional challenges of international criminal law, this paper has located and situated Justice Pal's views within the broader literature on dissent in international law and the specific academic engagement by international law and international criminal law scholars. Importantly, while acknowledging some of the problems within Justice Pal's dissent, I sought to locate his views within the TWAIL tradition. I then examined the problematic use of the rules in the everyday practices of the Tokyo Tribunal, and the more recent international criminal tribunals set up to prosecute the most egregious perpetrators of genocide in Rwanda and the former Yugoslavia. Deploying an understudied facet of Justice Pal's dissent on the rules of evidence and procedure, I chronicled how his scathing perspective remains relevant today, especially within the context of the practices of the ICTY and ICTR. I did so by tracing the effects of allowing judges of these tribunals to draft and amend their respective rules, the everyday impacts of these changes and the effects of allowing hearsay evidence.
Broadly, this paper followed in the footsteps of other TWAIL interventions on international criminal law, challenging the various forms of western universalism and double standards. These themes were scaffolded throughout Justice Pal's dissent. As I have illustrated, the same themes were part and parcel of the everyday practices of the ICTY and ICTR through the changes to their respective rules of procedure and evidence. By examining these practices, I have sought to uncover the embedded double standards, which are pervasive within these international criminal institutions. While there is a robust tradition within TWAIL that reconstructs and reimagines the existing structures within international law,Footnote 208 for this paper, my concern was focused on uncovering as opposed to reconstructing. Although the importance of creating “new legal edifices” for the betterment of the lives of those affected by international law and international institutions must be acknowledged,Footnote 209 one cannot ignore the calls for abolition and its continued relevance, especially in the delivery of international criminal justice.Footnote 210
My intervention is offered as a means to explore how the practices of international criminal institutions remain exclusionary and are unable to move beyond the persistent legacies of colonial double standards. This perspective though should not be mistaken as an insistence on, and continued faith in, international criminal law's ability to deliver justice. It is impossible to displace law's western universalism and its enduring legacies of the past. I would be remiss not to mention that there may be no other alternative but to engage in disavowal,Footnote 211 given the very nature of law and international law in particular. The more recent calls for racial justice have precipitated a reckoning with the law's role in the continued subjugation of black people, indigenous peoples, and racialized peoples.Footnote 212 In the same way, there is a real and urgent need to rethink international criminal institutions and how to deliver justice to the victims of mass violence.
Acknowledgements
The author is indebted to Dr Amar BHATIA, Dr Kate CRONIN-FURMAN, Dr Usha NATARAJAN, Dr John REYNOLDS, and Tyler DUNHAM for their comments. The author is grateful to Masa HAMWI and Leslie SCHUMACHER for editorial and research assistance. The author is also grateful to the University of Windsor Paul Martin Law Librarians and staff, in particular Annette DEMERS, Meris BRAY, and Vicki JAY LEUNG.
Funding statement
None.
Competing interests
None.
Sujith XAVIER, LL.B., LL.M., Ph.D. (he/him/his), is an associate professor at the Faculty of Law, University of Windsor. Sujith's research examines Third World Approaches to International Law (TWAIL), racialized settler relations and decolonization, and administrative law and racialization. He is one of the co-editors of Decolonizing Law: Indigenous, Third World and Settler Perspectives (Routledge, 2021). He is a founding editor of TWAIL Review. Sujith has significant experience working with grassroots organizations in Sri Lanka. A member of the Law Society of Ontario, Sujith has appeared before the Supreme Court of Canada, the Canadian Federal Court, and the Federal Court of Appeal.
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