Abstract
In this chapter the central research question is introduced (how should judges at the international criminal tribunals respond to procedural violations committed in the pre-trial phase of the proceedings?), as well as several sub-questions, concerning: the proper rationale(s) for judicial responses to pre-trial procedural violations; the extent to which the determination of whether to attach legal consequences to established procedural violations should entail the exercise of judgement, whereby the judge has due regard to the particular circumstances of the case (which may be contrasted to an approach whereby the judicial response is more or less automatic) and, on a related note, the extent to which it should entail a balancing approach, whereby the court (also) takes into account factors that seemingly have nothing to do with that which warranted the court’s attention in the first place, and which militate against a (potentially) far-reaching response thereto; and, finally, who bears (and indeed, who should bear) responsibility for pre-trial procedural violations—the state whose law enforcement authorities ‘actually’ committed the procedural violation or the international criminal tribunal that sought the cooperation of that state and is now seeking to rely on the results of the measures executed by such authorities on their behalf. In addition to introducing the central research question and the aforementioned sub-questions, this chapter delineates the scope of the study, whereby the object thereof is limited to the law and practice of the ICTY, ICTR and ICC, and several definitions are provided.
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Notes
- 1.
Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 109.
- 2.
Ibid., para 106.
- 3.
Ibid., para 112.
- 4.
Ibid., para 108.
- 5.
- 6.
Prosecutor v Barayagwiza (Decision (Prosecutor’s Request for Review or Reconsideration)) ICTR-97-19-AR72, A Ch (31 March 2000) paras 34–35.
- 7.
See Schabas 2000, 563, n 1.
- 8.
Prosecutor v Barayagwiza (Decision (Prosecutor’s Request for Review or Reconsideration)) ICTR-97-19-AR72, A Ch (31 March 2000) para 71. While the Appeals Chamber denied that they had been pressurized into changing their decision to release Barayagwiza (para 34 of the decision states that: ‘The Appeals Chamber wishes to stress that the Tribunal is an independent body, whose decisions are based solely on justice and law. If its decision in any case should be followed by non-cooperation, that consequence would be a matter for the Security Council.’), there is broad consensus in the literature that the decision was influenced by the Rwandan Government’s threats. See e.g. Schabas 2000, 567; Cogan 2002, 135; Fairlie 2003, 57–58; and Naymark 2008, 3–4.
- 9.
Prosecutor v Nahimana, Barayagwiza and Ngeze (Judgement and Sentence) ICTR-99-52-T, T Ch I (3 December 2003) para 1107; Prosecutor v Nahimana, Barayagwiza and Ngeze (Judgement) ICTR-99-52-A, A Ch (28 November 2007) para 1097.
- 10.
Choo 2008, 106. Choo uses the term ‘misconduct’ to denote ‘in the words of the Criminal Justice Act 2003 [an Act of the Parliament of the United Kingdom], ‘the commission of an offence or other reprehensible behaviour’’, whereby the term ‘reprehensible’ denotes ‘some element of culpability or blameworthiness’. Ibid., referring to the English Court of Appeals’ interpretation of the term ‘misconduct’ within the meaning of s 112(1) Criminal Justice Act 2003 in R v Renda [2006] 1 WLR 2948 [24].
- 11.
To borrow from Lord Steyn in R v Latif; R v Shahzad [1996] 1 WLR 104, 113.
- 12.
Vasiliev 2014, 171–182.
- 13.
- 14.
Vasiliev et al. 2013, 27.
- 15.
Ibid., 27.
- 16.
Ibid., 27–28.
- 17.
See e.g. Mégret 2013, 70.
- 18.
Vasiliev et al. 2013, 28.
- 19.
Ibid., 28.
- 20.
Vasiliev et al. 2013, 13–14.
- 21.
The law and practice of the Mechanism for International Criminal Tribunals (MICT) has not been included in this book; the MICT’s practice remains very limited, with the Arusha branch of the Mechanism only having commenced functioning on 1 July 2012, and the branch in The Hague only having commenced functioning on 1 July 2013.
- 22.
Vasiliev 2014, 72–73.
- 23.
The SCSL Statute authorizes the judges to, in adopting rules of procedure and evidence, draw upon Sierra Leone’s own criminal procedure, as laid down in the Criminal Procedure Act 1965 (Article 14(2)). As for the SPSC, s 3(1) TRCP provides that the panels shall apply ‘the law of East Timor’, as well as ‘where appropriate, applicable treaties and recognised principles and norms of international law, including the established principles of the international law of armed conflict’. Pursuant to Article 12 of the ECCC Agreement, ‘[t]he procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.’ Finally, the STL Statute authorizes the judges to, in adopting rules of procedure and evidence, draw upon the Lebanese Code of Criminal Procedure.
- 24.
See in this regard n 11. Nevertheless, it bears noting that this is not always how such terms are employed in the literature.
- 25.
The fact that, at the ICTs, disclosure is an ongoing obligation, meaning that, ‘as new material comes into the possession of the [p]rosecution, it should be assessed as to its potentially exculpatory nature and disclosed accordingly’ (Prosecutor v Karadžić (Decision on Prosecution’s Request for Reconsideration of Trial Chamber’s 11 November 2010 Decision) IT-95-5/18, T Ch III (10 December 2010) para 11; thus, it does not mean that the prosecution ‘can delay the disclosure of such material already in its possession, or identify and disclose potentially exculpatory material on a “rolling basis”’. Ibid.), does not alter the fact such disclosure should, in principle, be effected prior to the commencement of trial, i.e. that prosecution disclosure is, essentially, a pre-trial obligation.
- 26.
De los Reyes 2005, 595.
- 27.
See e.g. Gradoni 2013, 81.
- 28.
While the source of obligation differs for the ad hoc Tribunals, according to Gradoni, this has ‘no bearing on the status of human rights norms within the legal systems of international criminal tribunals’. See Gradoni 2013, 83.
- 29.
Put differently, they have been selected on the basis of their ability to ‘teach us something’. See Oderkerk 2001, 313. Oderkerk states that a system can ‘teach us something’ when the topic under analysis has ‘reached a higher level of development’. Certainly, Dutch and English courts have more experience than do the ICTs with the topic, and in both jurisdictions there is a substantial body of literature on the matter. Indeed, the law and practice of the two jurisdictions selected (and the theoretical accounts and (critical discussions) thereof in the scholarship) provide a rich source of reference material for the comparative exercise to be undertaken in this book.
- 30.
Of course, the reality is more nuanced. The Dutch procedural model, for example, is best described as ‘moderately inquisitorial’.
- 31.
For such a (comprehensive) study, see De Meester 2014.
- 32.
Zeegers 2016, 115.
- 33.
Another example is unlawfully obtained evidence.
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Pitcher, K. (2018). Introduction. In: Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings. International Criminal Justice Series, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-219-4_1
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