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Synthesis in Trial Procedures? The Experience of International Criminal Tribunals

Published online by Cambridge University Press:  17 January 2008

Mark Findlay
Mark Findlay
Affiliation:
Centre for Legal Research, Nottingham Law School; Institute of Criminology, University of Sydney.
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Extract

Critical to analysing the recent synthesis of criminal trial procedures is an understanding of the internationalisation of criminal law and procedure.1 As well as the creation of international tribunals2 to investigate and try crimes of world significance, there is emerging an international jurisprudence on criminal law (and procedural hybrids to support and develop this) which require integrated analysis.3

Type
Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 1 , January 2001 , pp. 26 - 53
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. See, Sunga, L. (1997) The Emerging System of International Criminal Law: Develop ments in codification and implementation, The Hague: Kluwer.Google Scholar

2. Exemplified by the International Criminal Tribunal for the Former Yugoslavia (in the Hague), and moves towards an international criminal court see, “A Permanent International Criminal Court” <www.Undp.Org/missions/netherlands/ICC.htm>.

3. The comparative examination of criminal trial procedure within the context of internationalisation might be best achieved through comparative contextual analysis. Such a methodology presents the potential for avoiding many of the pitfalls of the comparative project in socio-legal research. For a discussion of comparative contextual analysis see, Findlay, M. (1999) The Globalisation of Crime, Cambridge: CUP pp.6–8.CrossRefGoogle Scholar

4. For instance, the need to try war criminals identified as a consequence of more regular global military interventions such as in Bosnia and Serbia. See, Cotic, D. (1994) “A Critical Study of the International Tribunal for the Former Yugoslavia” in Criminal Law Forum 5/2–3:223–236Google Scholar. Also note that the recent U.S. opposition to the establishment of an International Criminal Court is founded on the American view of an inextricable connection between any such court and the mandate and interests of the UN Security Council. (See, n.9 below).

5. Driven as they are by the foreign policy concerns of the United States and Western Europe, even more than those of world agencies such as the United Nations. See, Goldstone, R. (1996) “Justice as a Tool for Peace-making: Truth commissions and international criminal tribunals” in New York University Journal of International Law and Politics 28/3:485–503.Google Scholar

6. It is also important to recognise that the structure of these international institutions and the derivation of the procedures under which they will operate have been the subject of intense political lobbying. See, Scharf, M.(1999) “The Politics Behind the U.S. Opposition to the International Criminal Court” in New England International and Comparative Law Annual <www.nesl.edu/annual/vol5/scharf.htm>..>Google Scholar

7. This is an important policy purpose of a major research project (The International Criminal Trial Project) currently under way in the Centre for Legal Research, Nottingham Law School.

8. Particularly with international war crimes adjudication.

9. Opposition to such developments rests on the preference by countries like the U.S. and China to use their UN Security Council veto to negotiate and control prosecutions, rather than as a general resistance to the concept. While the Americans endorse the court concept they seem unwilling to relinquish their dominance of international institutions through an independent prosecution process, and have put the position that the proposal for an international criminal court will fail without their support. In the U.S. view the connection between political priorities and the rule of law is clear at an international level. See, Schaffer D (1998) “Address Before the Southern Californian Working Group on the International Criminal Court” in <www.pbs.org/wgbh/pages/frontline/shows/karadzic/genocide/iccus.html>.

10. This concept of a “just” war not only regularly appeared in the rhetoric of NATO for justifying its hostilities in Kosovo, but has since been implicit in delineating the “crimes” of the Serbians from the necessities of NATO forces – see also, Ulmen, G. (1996) “Just Wars or Just Enemies” in Telos 109:99–112.CrossRefGoogle Scholar

11. See, Robinson, D. (1997) “Trials, Tribulations and Triumphs: Major developments in 1997 at the International Criminal Tribunal for the Former Yugoslavia” in Canadian Yearbook of International Criminal Law, XXXV: 179–213.Google Scholar

12. See, Tochilovsky, V. (1998) “Trial in International Criminal Jurisdictions: Battle or scrutiny” in European Journal of Crime, Criminal Law and Criminal Justice 6/1: 55–59.CrossRefGoogle Scholar

13. This is not to downplay the significant differences between civil law and common law evidentiary rules and trial practice, the comparative analysis of which will form the basis of much of the research to follow. See, for instance. Nsereko, D. (1994) “Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia” in Criminal Law Forum 5/2–3:507–555.CrossRefGoogle Scholar

14. For a discussion of the comparative trial “theatre” in respect of a murder trial see, McKillop, B. (1997) Anatomy of a French Murder Case, Sydney: Hawkins Press.Google Scholar

15. See, King, F. & La Rosa, A. (1997) “International Criminal Tribunal for the Former Yugoslavia: current survey—the jurisprudence of the Yugoslavia Tribunal: 1994–1996” in European Journal of International Law 8/1:123–179.Google Scholar

16. Such as between English and American common law, German and French civil law.

17. For an analysis of the inextricable association between methods of legal regulation, and domestic and global political interests, see, Findlay, M., (1999) The Globalisation of Crime, Cambridge: Cambridge University Press; chap. 1.CrossRefGoogle Scholar

18. See for instance the U.S. position on the establishment of a permanent international criminal court, in Everard, T (1994) “An International Criminal Court: Recent proposals and American concerns” in Pace Uni School of Law Int'l Law R 6:121Google Scholar, also Scharf, M. (1995) “The Politics of Establishing an International Criminal Court” in Duke J of Comp & Int'l Law 6/1:167.Google Scholar

19. Richard Vogler warns against this in his description of French criminal procedure. See, Hatchard, J., Huber, B. & Vogler, R. (eds.) (1996) International Criminal Procedure London: BIICL; chap 1.Google Scholar

20. In particular the Rules of Procedure (1994—as amended) of the International Criminal Tribunal for the Former Yugoslavia; the Rules of Procedure and Evidence (1999) discussed as Part 6 of the Rome Statute for the creation of an International Criminal Court (ICC). For a discussion of the progress of negotiations about the ICC see, Hall, K. (1998) “The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court” in American Journal of International Law 92/2:331.CrossRefGoogle Scholar

21. For a discussion of the use of style see Findlay, M. & Zvekic, U. (1993) Alternative Policing Styles, Deventer: KluwerGoogle Scholar. In the present context style enables some movement away from simple distinctions on the basis of origin, or the process for eliciting evidence.

22. In a general sense this knowledge will need to be assumed of the reader. Unfortunately we are not able to recommend a competent single text which adequately identifies the essential features of the two systems for the purposes of comparison. See, Reichel, P. (1999) Comparative Criminal Justice Systems, New York: Prentice HallGoogle Scholar; Ingraham, B. & Verin, J. (1987) The Structure of Criminal Procedure, Conn.: Greenwood.Google Scholar

23. See Runciman, W.G., (1994) Royal Commission on Criminal Justice 1991–1993, London: HMSOGoogle Scholar; also the work of the Australian Law Reform Commission on comparative civil procedure.

24. Damaska, M., (1986) Two Faces of Justice and Authority: A comparative approach to the legal process, New Haven: Yale University PressGoogle Scholar; Zeidler, N., (1981) “Evolution of the Adversary System: As comparison some remarks on the investigatory system of procedure”, in 55 Aust Law J 390Google Scholar; Goldstein, & Marcus, , (1987) “The Myth of Judicial Supervision in the Three ‘Inquisitorial’ Systems: France, Italy and Germany', in 87 Yale LJ 240Google Scholar; Volkman-Schluk, (1981) “Continental Criminal Procedure: Myth and Reality”, in 9 Am J Cr L1; McKillop, B., (1997) The Anatomy of a French Murder Trial, Sydney: Hawkins Press.Google Scholar

25. Leigh, L., “Liberty and Efficiency in the Criminal Process: The significance of models”, in (1977) 26 I.C.L.Q. 516.CrossRefGoogle Scholar

26. See Findlay, 1999, op. cit. n.3.

27. See Walker, C. & Starmer, K., (1998) Justice in Error, London: Blackstone PressGoogle Scholar; Carrington, K. ( et al. ) (eds.) (1991) Travesty: Miscarriages of Justice, Sydney: Pluto Press.Google Scholar

28. Note the comments of the Woolf Report in relation to the failings of civil justice and their remedy—Woolf, H. (1996) Access to Justice: Final report to the Lord Chancellor on the civil justice system in England and Wales, London: HMSO.Google Scholar

29. A unique opportunity for this is through examining the forces at work in the evolution of the international criminal court and its proposed procedures.

30. Such identification can be achieved through an analysis of enabling documentation and procedural rules, but will be more convincing if tested through examination of trial transcripts and observation of trial practice.

31. This is particularly the case with terminology and trial language, as well as with the professional presence of the principal trial players.

32. Despite the fact that, for instance, the Statute of the International Tribunal (for the Former Yugoslavia) (SIT) in Article 15 invites its judges to adopt rules of procedure and evidence for the working of the Tribunal, one might suspect that where these rules differ substantially from the experience of any individual judge these may tend to be reinterpreted in practice. An analysis of Trial and Appeal Chamber judgments may reveal this.

33. SIC Art. 21 (2).

34. SIC Art. 21 (1).

35. Norrie, A. (1993) Crime Reason and History: A critical introduction to criminal law, London: Weidenfeld & Nicolson.Google Scholar

36. Article 21 (3).

37. Rule 42 (A) (iii). No reference in the Statute or the Rules is made to any inferences which the judge or prosecutor may draw if silence is claimed. See also the SIC Art. 67(l)(g).

38. SIT Art. 21(3)(g).

39. The right to the unsworn “dock statement” has been removed (which is contrary to the proposed protection in the ICC – SIC Art. 67 (1)(h)). Judges are also given some restricted opportunity to make adverse comment on an accused's refusal to answer questions in certain circumstances. See, for instance, Criminal Justice and Public Order Act, 1994, ss.34, 36, 37Google Scholar. Also, note the discussion in Murray v. DPP (1992) 97 Cr. App. Rep. 151; R v. Martinez-Tabon [1994] 2 All E.R. 90.

40. For a discussion of this in the context of Article 6 of the European Convention see, Saunders v. UK (1977) 23 E.H.R.R 313.Google Scholar

41. SIT Rule 90 (E).

42. This is taken even further from the civil law tradition when the SIC protects against the imposition on the accused of “any reversal of the burden of proof, or any onus of rebuttal”—SIC Art. 67 (1)(i).

43. Cf., for instance, Magistrates Courts Act 1980, s.101Google Scholar, Misuse of Drugs Act 1971 s.28(2)Google Scholar; Public Order Act 1986 s.6(5).Google Scholar

44. SIT Art. 12.

45. SIT Art. 13.

46. Ibid.

47. The role of the Security Council and the General Assembly in filling casual judicial vacancies, appointing other trial professionals, disciplining professional misconduct, and ensuring the primacy of the tribunal or court against those of national jurisdictions makes the bond a more operational one. Similar criticisms could be raised in relation to the independence of the prosecutor.

48. Art. 7 (1).

49. Art. 25 (2).

50. For instance, SIT Art. 7. Another indicator of this is the limitation on the jurisdiction of these tribunals only over “natural persons”.

51. SIT Arts. 2–5.

52. SIC Art. 30.

53. The grounds for excluding liability as set out in Art 31 of SIC seem to anticipate this.

54. See Norrie, A. (1993) Crime, History and Reason, London: Butterworths.Google Scholar

55. The term prosecutor here, while distinctly different in many ways, is used for convenience to also refer to procurators.

56. Obviously, as with so many statements for the purposes of broad comparison, this requires qualification. For example, the offices of the Attorney General, and the District Attorney in U.S. jurisdictions have extensive investigation as well as prosecution functions. In many other common law jurisdictions, in the lower courts prosecutions may be carried out by investigation agencies such as the police.

57. This initiating role is an extension of the powers of the prosecutors in many civil law settings.

58. Art. 51 (1).

59. This is not to be confused with the common law process of committal which concludes after charge and determines whether the prosecution case is fit for trial. This might be seen as a stage at which the court further aligns itself with the protection of the rights of the accused.

60. In certain jurisdictions, such as Scotland, this has progressed to the point of formal determinations of guilt and penalty on consent without proceeding to trial. See Duff, P. (1993) “The Prosecutor Fine and Social Control: The introduction of the fiscal fine in Scotland”, British Journal of Criminology 33/4: 481.CrossRefGoogle Scholar

61. See Rule 9 of SIT. Non-compliance with this request is enforced by the Security Council—Rule 11 SIT.

62. See Rules 39–41 SIT.

63. As enunciated, for instance, in Rules 42–43 SIT.

64. Art 52. For a discussion of the functions and powers of the pre-trial chamber see, Art 57.

65. Rule 47 (A). It should be noted that particularly in relation to the Tribunal's early hearings there was some generality in the description of charges in the indictment. This may have been a product of the broad construction of offences in the Statute and the absence of judicial interpretation as to the elements of these offences.

66. Rule 50 (A).

67. This onus on the prosecutor is recapitulated for instance in SIC Art. 66 (2).

68. This may be supported by a written record of interview, and physical or documentary exhibits. However their admission as evidence may depend on the process through which oral testimony is examined.

69. This may include the transcripts of testimony from witnesses, and may be confirmed or elaborated by witnesses examined in person during the trial.

70. It has been suggested that this might reflect the preferred practice of the prosecutors, most of whom seem to have come from a common law tradition.

71. It should be remembered that for this Tribunal, and as proposed for the ICC, there is detailed opportunity for closed hearings, the delivery of testimony through video facilities and the de-identification of witnesses—see, SIC Arts. 64 (7), 68, 69.

72. Rule 85. Such entitlement is qualified in the common law styles and may not exist for the defence at least in certain civil law trial proceedings.

73. SIC Art.64 (8)(b).

74. SIT Rule 71.

75. SIC Art.64 (9)(a). This distinction may suggest that these determinations are not mutually reliant.

76. SIC Art. 69 (4).

77. SIC Art. 69 (3).

78. SIC Art. 69 (7).

79. SIT Rule 66 (A).

80. SIT Rule 66 (C).

81. SIT Rule 67 (A)(ii). Failure to disclose does not limit the right of the accused to utilise the special defence.

82. In this respect it is not only the ideology of original procedural styles which is challenged, but so too consistency with the ideology of the international tribunals.

83. SIT Rule 67 (C).

84. This, of course, highlights a common failing with expectations for disclosure: the party on whom the obligation is placed is also the party likely to have special knowledge of what should be disclosed. Therefore, the enforcement of disclosure obligations as of right from the benefiting party may prove impossible.

85. SIT Rule 68.

86. Rule 70—Matters not subject to disclosure.

87. If such information is required for disclosure, the person providing confidential information cannot be compelled as a witness to answer questions which he declines on the basis of confidentiality—Rule 70 (D).

88. SIT Rule 90 (E). Interestingly, this stands in opposition to rights charters such as the International Covenant on Civil and Political Rights. See how this stands against the protections espoused in Rule 95.

89. SIT Rule 85.

90. The Transcript of this judgment is particularly enlightening from a procedural point of view due to the 10 page procedural background which plots the interactions in the Tribunal through the pre-trial and trial phases.

91. It may be argued that this failure to direct as to the constituent elements of very wide and as yet ill-defined offences may have been a reason for the need to amend the indictment prior to trial, and why there was some criticism of the manner in which the prosecutors were forced to rely on broad time periods for the establishment of certain charges.

92. See, Rule 96 (1). The Chamber argued that the impact of this rule went way beyond what is allowed in common law traditions.

93. As enunciated in Golder v. United Kingdom (1975) 1 E.H.R.R. 524 para.36.Google Scholar

94. Grosz, J., Beatson, J. & Duffy, P., (2000) Human Rights: The 1998 Act and the European Convention, London, Sweet & Maxwell, p.221.Google Scholar

95. Any restrictions must not be such that “the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved”; see, Ashingdane v. United Kingdom (1985) 7 E.H.R.R. 528 para.57.Google Scholar

96. Holm v. Sweden (1994) 18 E.H.R.R 79.Google Scholar

97. Neilsen v. Denmark, (1989) 11 E.H.R.R 175Google Scholar, Commission's Opinion para. 52 98. See, Barbera, Messengue and Jabardo v. Spain (1988) 11 E.H.R.R. 360.Google Scholar

99. Grosz (et al.) op. cit. pp.245–246.

100. Kaufman v. Belgium (1986) 50 D.&R. 98.

101. Murray v. UK (1996) 22 E.H.R.R 29 para. 45.Google Scholar

102. Saunders v. UK (1996) 23 E.H.R.R 313Google Scholar, held that the right to silence may not operate to prevent the compulsory obtaining (as opposed to use) of evidence during the investigation of company offences.

103. Eckle v. Germany (1983) 5 E.H.R.R. 1 para. 80.Google Scholar

104. See, Saunders v. UK op. cit., where allegations of a racist jury were said to deny the impartiality of the tribunal and therefore challenge the presumption of innocence.

105. See, Austria v. Italy (1963) 6 Y.B. 740.

106. See, Salabiaku v. France (1988) 13 E.H.R.R 379.Google Scholar

107. Edwards v. UK (1993) 15 E.H.R.R 417.Google Scholar

108. Antico v. Italy (1980) 3 E.H.R.R. 1 para. 33.Google Scholar

109. Dorson v. Netherlands (1996) 22 E.H.R.R 330.Google Scholar

110. Arising as they do out of international organisations and multilateral agreements which similarly foster and rely on rights conventions.

111. The new human rights legislation in England has thrown into stark relief certain investigation and trial practice. The French have recently reviewed their criminal procedure against the European Human Rights Convention and preferred to retain contradictory features.

112. Such as the qualification of the rule against self-incrimination.