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Comparing the ICTY and the ICC: Some Procedural and Substantive Issues

Published online by Cambridge University Press:  21 May 2009

Gideon Boas
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Extract

The purpose of this article is to compare the International Criminal Court with the International Criminal Tribunal for the Former Yugoslavia from a structural and procedural perspective and to comment upon some of the content of the ICC Statute and Rules from the experience of the ICTY. The ICTY is the first tribunal established for the purpose of punishing violations of international humanitarian law since the post World War II trials and is a unique case study in the realm of international criminal justice. It is also the first criminal tribunal set up under Chapter VII of the United Nations Charter (a technique utilised subsequently in setting up tribunals to deal with Rwanda and possibly Sierre Leone) and has been granted broad powers of drafting and amending its own Rules of Procedure and Evidence, which is something that sets it aside from other criminal jurisdictions, including the ICC.

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Articles
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Netherlands International Law Review , Volume 47 , Issue 3 , December 2000 , pp. 267 - 291
Copyright
Copyright © T.M.C. Asser Press 2000

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References

2. Hereafter referred to as ‘ICC’.

3. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, hereafter referred to ‘ICTY’ or ‘International Tribunal’.

4. The Rome Statute of the International Criminal Court, PCNICC/199/1NF/3,17 August 1999, will be referred to hereafter as ‘ICC Statute’. The Rules of Procedure and Evidence, PCNICC/2000/ INF/3/Add.l, 12 July 2000 (officially the finalised draft text, awaiting finality), will be referred to hereafter as ‘ICC Rules’ or ‘Provisional Rules’.

5. See McCormack, T.L.H. and Simpson, G.J., ‘The International Law Commission's Draft Code of Crimes against the Peace and Security of Mankind’, 4 Criminal Law Forum (1994) pp. 1, 6.Google Scholar See also Clark, R.S., ‘Nuremberg and Tokyo in Contemporary Perspective’, in McCormack, T.L.H. and Simpson, G.J., eds., The Law of War Crimes: National and International Approaches (The Hague, Kluwer Law International 1997) p. 171.Google Scholar

6. UN Doc. A/CONF. 183/9. For a discussion of the jurisdictional aspects of the ICC Statute, see McCormack, T.L.H. and Robertson, S., ‘Jurisdictional Aspects of the Rome Statute for the New International Criminal Court’, 23 Melbourne University Law Review (1999) p. 635.Google Scholar

7. UN Doc. A/AC.249/1998/L.13 (1998). See also, Arsanjani, M.H., ‘The Rome Statute of the International Criminal Court’, 93 AJIL (1999) p. 22 at p. 24.Google Scholar

8. See Arsanjani, Generally, loc. cit. n. 7, at p. 22.Google Scholar

9. See, for example, the views of the former prosecutor of the ICTY, in Arbour, L. and Bergsmo, M., ‘Recurring themes: Conspicuous Absence of Jurisdictional Overreach’, 1 International Law Forum (1999) p. 13.Google Scholar

10. See, for example, Cassese, A., ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 EJIL (1999) pp. 158–159Google Scholar; Sarooshi, D., ‘The Statute of the International Criminal Court’, 48 ICLQ (1999) pp. 394–395.CrossRefGoogle Scholar

11. Cassese, , loc. cit. n. 10, at p. 159.Google Scholar

12. International Law Commission, Draft Statute for an International Criminal Court, in Report of the International Law Commission on its Forty-Sixth Session, UN GAOR, 49th Sess., Supp. No. 10, UN.

13. On this point, see Generally, Crawford, J. ‘The ILC's Draft Statute for an International Criminal Tribunal', 88 AJIL (1994) pp. 140, 141.Google Scholar

14. Art. 5 of the ICC Statute provides in para. 2: ‘The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.’ See generally, McCormack and Robertson, loc. cit. n. 6, at p. 635. It is noted that the prospective admission of the crime of aggression into the ICC Statute is a step beyond the subject matter crimes provided for in the ICTY and ICTR Statutes. On this point, see generally Sarooshi, loc. cit. n. 10, at p. 387.

15. Arsanjani, , loc. cit. n. 7, at p. 25.Google Scholar

16. Broomhall, B., in Triffterer, O., ed., Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (Baden-Baden, Nomos 1999) p. 42.Google Scholar

17. ILC Report 1994, Commentary, p. 65. See also McCormack, T.L.H. and Simpson, G.J., ‘Achieving the Promise of Nuremberg: A New International Criminal Law Regime’, in McCormack and Simpson, eds. (1997), op. cit. n. 5, at pp. 229, 248–249.Google Scholar

18. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995), p. 26 and p. 131.

19. Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22 (1996), p. 50 (Vol. I).

20. Broomhall, op. cit. n. 16, at p. 43.

21. Report of the Preparatory Committee on the Establishment of an International Criminal Court, supra n. 19, pp. 180–185,214.

22. Art. 13.

23. See, for example, Prosecutor v. Tadić, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of Additional Evidence, Case No. IT–94–1–A, 15 October 1998, p. 44.

24. ICC Rules, para. 1 of the Explanatory Note, p. 1.

25. S/Res/827 (1993), 25 May 1993.

26. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993 (hereafter referred to as ‘Secretary-General's Report’), p. 83.

27. See generally the International Tribunal's Annual Reports, in particular to ‘Regulatory Activity’ in the ‘Chambers’ sections of the Reports.

28. Before it was amended to provide that ‘an amendment shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment’. At that time it was Sub-rule (C).

29. Two reviews in the case of Prosecutor v. Blaškić (hereafter referred to as ‘Blaškić case’), Case No. IT–95–14–AR108bis, 29 07 1997, pp. 10–11; and 12 August 1997, pp. 11–13.

30. Prosecutor v. Blaškić, Decision on the Defence Motion to Compel the Disclosure of Rule 66 and 68 material relating to Statements made by a Person known as ‘X’, Case No. IT–95–14, 15 July 1998.

31. Prosecutor v. Dosen & Kolundzija, Order on Motion of Accused Kolundzija for Access to Certain Confidential Materials, Case No. IT–95–8–PT, 3 February 2000.

32. Prosecutor v. Furundzija, Case No. IT–95–17/1.

33. ibid., at p. 3.

34. Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the international Tribunal, IT/143, 18 December 1999. This document is reflected in Rule 6(C) of the Rules, and lays out the procedures to be followed for proposal and amendment to the Rules.

35. Cassese, loc. cit. n. 10, at p. 163.

36. ibid., at p. 164.

37. For example, Rule 62bis(ii) requiring that a guilty plea be ‘informed’, a matter clarified by the Appeals Chamber in the case of Prosecutor v. Erdemovic, Judgment of the Appeals Chamber, Case No. IT–96–22–A, 7 October 1999, p. 20.

38. The ICC Rules contain 225 Rules compared with the ICTY's 152 after 18 revisions.

39. Rule 89(A) of the Rules states in part ‘[t]he Chambers shall not be bound by national rules of evidence’.

40. Prosecutor v. Dario Kordić and Mario Čerkez, Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, Case No. IT–95–14/2, 29 July 1999, p. 12.

41. Rule 65ter deals with the creation of a pre-trial judge, who is delegated powers by the Trial Chamber to streamline the pre-trial process, narrow the issues between the parties and prepare the case for trial. Rule 73bis provides for a pre-trial conference for the further streamlining and expeditionof the trial, including providing for the Trial Chamber to call upon the prosecution to reduce the estimated time for examination in chief of certain witnesses. Rule 73ter provides for a pre-defence conference and has the same purpose as Rule 73bis except that it applies to the defence case.

42. Examples of this include: the admissibility of hearsay evidence under the ICTY's jurisprudence (see the decision of the Appeals Chamber in Prosecutor v. Zlatko Aleksovski, Decision on Prosecutor's Appeal on Admissibility of Evidence, Case No. IT–95–14/1–AR73, 16 February 1999 (hereafter referred to as ‘Aleksovski Appeals Decision’), p. 15); and, the admission of other forms of documentary evidence which would clearly violate common law principles of the admissibility of evidence, such as testimony of witnesses from other trials of similar subject-matter without crossexamination in the relevant proceedings, Prosecutor v. Dario Kordić and Mario Čerkez, Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, Case No. IT–95–14/2, 29 July 1999.

43. ‘The purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal.’ Aleksovski Appeals Decision, p. 19.

44. ‘(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have probative value.

(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

(E) A Chamber may request verification of the authenticity of evidence obtained out of court.'

45. Prosecutor v. Dario Kordić and Mario Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No. IT–95–14/2–AR73.5, 21 July 2000, p. 24.

46. Rule 63 sets out the general provisions relating to evidence and Rule 64 sets out the procedure relating to the relevance or admissibility of evidence. The latter Rule states:

1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court.

2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.

3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber.

47. May, R. and Wierda, M., ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Columbia Journal of Transnational Law (1999) pp. 727, 745.Google Scholar

48. ibid.

49. May, and Wierda, , loc. cit. n. 47, at p. 744.Google Scholar

50. See generally, Krug, P., ‘The Emerging Mental Incapacity Defence in International Criminal Law: Some Initial Questions of Implementation’, 94 AJIL (2000) pp. 317, 323; May and Wierda, loc. cit. n. 47, at p. 727; R. Dixon, ‘Developing International Rules for the Yugoslav and Rwanda Tribunals’, 7 Transnational Law and Contemporary Problems (1997) p. 81.Google Scholar

51. Cassese, loc. cit. n. 10, at p. 168.

52. See, for example, Professor Pradel, J., in van den Wyngaert, C., ed., Criminal Procedure Systems in the European Community (London, Butterworths 1993) p. 119.Google Scholar

53. The case of Prosecutor v. Delalić and Ors. (hereafter ‘Ĉelebići case’), Decision on the Request of the Accused Pursuant to Rule 68 for Exculpatory Information, 24 June 1997, p. 12.

54. Art. 67(2) reads: ‘In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused.’

Rule 84 of the ICC Rules is entitled ‘Disclosure and additional evidence for trial’, and reads: ‘In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3(c) and 6(d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.’

55. Cassese, loc. cit. n. 10, at p. 167.

56. ‘(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty of a crime which has caused injury to a victim.

(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.

(C) For the purposes of a claim made under Sub-rule (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.’

57. ‘Rule 98 (Power of Chambers to Order Production of Additional Evidence)

A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance.’

58. Emphasis added.

59. Hatchard, J.Huber, B. and Vogler, R. eds., Comparative Criminal Procedure (London, British Institute of International and Comparative Law 1996) p. 71.Google Scholar

60. ibid., at p. 72.

61. ibid.

62. Archbold, J.F., ed., Criminal Pleading, Evidence and Practice (London, Sweet and Maxwell 1995) pp. 4–324.Google Scholar

63. ‘Proposal submitted by Australia: Draft Rules of Evidence and Procedure of the International Criminal Court’ to the Preparatory Commission for the International Criminal Court.

64. Rule 33 of the Provisional Rules states:

‘1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following:

(a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;

(b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party;

(c) Performance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned;

(d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned.

2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions.

3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber.’

65. Rule 15 of the ICTY Rules deals with disqualification of judges and sets out broad circumstances in which a judge should withdraw. Notably, a judge who has confirmed an indictment is not disqualified from sitting on the trial or appeal (substantive or otherwise) in the same case. The Rule has been subject to numerous amendments which reflect the jurisprudence of the ICTY to take a robust view of the existence or otherwise of circumstances giving rise to disqualification of a judge.

66. This can be seen by the number of judges assigned from the Trial Chambers to various appeals and occasionally from the Appeals Chamber to sit on trials, due to judges either being contaminated or unavailable.

67. See above n. 41.

68. Emphasis added.

69. Emphasis added.

70. Art. 19(6) of the ICC Statute.

71. ‘Functions and powers of the Pre-Trial Chamber’.

72. See also Art. 58 of the ICC Statute.

73. Speech by Gabriel Kirk McDonald to the ICC Diplomatic Conference in Rome, 16 June 1998, reproduced in ICTY Yearbook (1998) p. 479.