Week 4(ii) - Procedure

Question 1

How is the common law approach to procedure? (6)

Answer 1

1) investigation and evidentiary presentation is party-driven
2) parties seek to influence adjudicators
3) lay jurors decide on verdict
4) professional judges act passive referee to ensure fairness and equality of arms
5) strict rules of admissibility of evidence to protect jurors
6) seeks ‘procedural truth’

Question 2

How is the civil law approach to procedure? (6)

Answer 2

1) investigations and trials are judge-led
2) parties’ role is to assist judge in ascertaining objective truth
3) inquiry led by official under duty of objectivity
4) case file (dossier) is repared and examined at trial
5) professional judges decide both verdict and sentence jointly with lay jurors
6) relaxed admissibilty rules due to focus on truth and control of professional adjudicators

Question 3

How are adversarial procedures reflected in ICL? (2)

Answer 3

1) Similarity: weight attached to fair trial guarantees of accused
2) Difference: parties cannot be relied on to conduct own investigation since depends on State cooperation

Question 4

How are inquisitorial procedures reflected in ICL? (2)

Answer 4

1) Similarities
i) focus on impartial judicial inquiry and creation of historical record
ii) permits room for active victim participation

2) Difference: ICL often adversarial approach to witnesses and sequential presentation of evidence

Question 5

Should legal traditions be mixed? (2)

Answer 5

1) Can lead to internal inconsistencies

2) Should ICL be seen through lenses of legal traditions or be approached as system in its own right?

Question 6

How did IMT/IMTFE approach the definition of their procedures? (2)

Answer 6

1) RPEs: only basic provisions

2) judges developed some Rules of Procedure (but also not detailed)

Question 7

How did ICTY/ICTR approach the definition of their procedures? (5)

Answer 7

1) Statutes: only few procedural provisions
2) Procedure was left for judges to flesh out guided by HR, general principles and IMT/IMTFE
3) ICTY RPE: amended 50 times 1994-2015
4) ICTR RPE: amended 23 times 1995-2015
5) Frequent changes undermined legal certainty (Sluiter)

Question 8

How has the ICC approached the definition of its procedure? (3)

Answer 8

1) Detailed RPE
2) Judges may only provisionally amend RPE subject to State Parties’ approval (Art 51(3) Rome Statute)
3) Regulations of Court are adopted by judges (but only such as necessary for routine functioning (Art 52 Rome Statute))

Question 9

How are the legal traditions reflected in international criminal tribunals? (3)

Answer 9

1) IMT/IMTFE:
i) strong anglo-american influence
ii) however some departures (admissibility of evidence, and no jury)

2) ICTY/ICTR
i) mainly adversarial
ii) however relaxed admissibility rules and more judicial control

3) ICC
i) promising balance between common and civil law (Cryer)

Question 10

How do judges’ roles differ between ICTY/ICTR and ICC? (3 + 3)

Answer 10

1) ICTY/ICTR:
i) adversarial passive judges
ii) judges could order parties to present evidence but was used sparingly in practice
iii) although heightened control, more case managers than fact-finders

2) ICC
i) active role of PTC prior and during investigation (Art 15)
ii) Stronger role for judges but still short of inquisitorial
iii) judges however have discretion to take more inquisitorial approach although not used in practice

Question 11

How does the prosecutor’s role differ between ICTY/ICTR and ICC? (2)

Answer 11

1) ICTY/ICTR: no obligation to search exculpatory evidence - only duty to disclose if come into possession
2) ICC: duty of objective truth seeking - must investigate inculpatory and exculpatory equally (Art 54(1)(a) Rome Statutes)

Question 12

How do ICTY/ICTR and ICC differ in approach to incorrect indictments? (2)

Answer 12

1) ICTY/ICTR: common law approach permitting multiple counts of indctment from which court choose most fitting
2) ICC: Civil law approach whereby court modify label to make suitable

Question 13

How will the accused be brought before the court? (2)

Answer 13

1) Summons if no fear of absconding

2) otherwise arrest warrant

Question 14

How many judges sit at the trial chamber?

Answer 14

3

Question 15

What is the burden of proof at trial?

Answer 15

Prosecutor must show accused’s guilt beyond reasonable doubt

Question 16

What is the ‘confirmation hearing’ (3)

Answer 16

1) a hearing before 3 judges between pre-trial and trial
2) check whether reasonable grounds for conviction assuming prosecutor has the evidence they claim to have
3) did not exist at ICTY/ICTR

Question 17

Are trials in absentia permitted before ICC? (3)

Answer 17

1) No
2) would be contrary to rights of accused (Art 67 Rome Statute)
3) Cf. STL where permitted

Question 18

How is witness testimony conducted at ICC? (3)

Answer 18

1) generally in person although video link is possible
2) both parties and court can call witnesses (Arts 64(6)(b) and 69(3) Rome Statute)
3) similar to ICTY/ICTR

Question 19

How does ICC approach sentencing? (3)

Answer 19

1) max 30 years or exceptionally life
2) no death penalty
3) potentially reparations to victims

Question 20

How is presentation of evidence approached in ICTY/ICTR vs ICC? (3 + 3)

Answer 20

1) ICTY/ICTR:
i) adversarial sequence, with limited judge control
ii) this was because largely drafted by US Bar Association
iii) increased judge-control in response to criticism of long trials (but not clear that helped)

2) ICC
i) adversarial sequential approach as well
ii) however not mandatory and judges may approach differently
iii) less distinction between prosecution and defence witnesses
iv) growing role of judges as more civil law judges have joined

Question 21

What are the major legal traditions? (3)

Answer 21

1) Common law
2) civil law
3) Islamic law

etc.

Question 22

What is the cause of long trials in international tribunals? (3)

Answer 22

1) adversarial sequence of presentation?
2) Cf. ICC has potentially even longer proceedings despite more inquisitorial
3) perhaps source of length is confusion resulting from mix of procedures?