Revised Pre-Trial Procedure Before the ICTY from a Continental/Common Law Persepective
For nearly a decade and a half, the world has witnessed the resurgence of international criminal law, a revival initially brought about by the formation of the International Criminal Tribunal for the former Yugoslavia (ICTY), which has since forged the way for a 'constantly expanding universe of international criminal justice institutions.' The first ad hoc tribunal incurred the task of formulating a procedural and evidentiary framework for international criminal proceedings, a significant assignment and an undertaking made all the more challenging owing to the high expectations of the international community. Also unique to the Tribunal was its instant precedent-setting status. Whilst it took nearly fifty years for the prosecutions at Nuremberg and Tokyo to bear practical relevance for the next wave of non-domestic prosecutions, the effect of ICTY practice is decidedly dissimilar, and one that creates a strong impetus to reflect upon it in some detail. At the time of its inception, it was widely noted that the ICTY needed to incorporate the human rights developments of the near half-century that preceded its creation and that the failure to do so effectively would undermine both its credibility and the long-term viability of international criminal justice. The general consensus is that the ICTY has been reasonably successful in its treatment of accused persons. Yet, as tribunal practice stands poised to be imitated-indeed, even before the Tribunal issued its first indictment, its procedural framework was recognised as 'a blueprint for ... future international courts' -it makes sense to consider the value of its contribution to the development of international criminal procedure. In this vein, this piece assesses 'the crucial role played by pre-trial proceedings in the administration of justice' at the ICTY. There is perhaps no better argument for the worth of such an analysis than that tribunal practice in this regard has proven unsatisfactory to observers and participants alike. The assessment that follows takes into account the structure of the Tribunal, its initial approach to pre-trial matters and the manner in which such practice has been transformed, with the latter focusing in particular on the role of the pre-trial judge, the judiciary' s access to evidence, and pre-trial and defence disclosure obligations. These aspects of ICTY pretrial practice are considered through both a continental and a common law lens. This approach does not seek to deny that the Tribunal's present practice is sui generis; indeed, even if the same is seen as a continental/ common law hybrid, its ( ever evolving) amalgamation is undoubtedly unique and gives rise to sui generis issues and questions. Yet insofar as the Tribunal's construct may be deemed to have an Anglo-American orientation and changes made may tend to reflect continental practice, it makes sense to consider, in light of the experience of the relevant systems of justice, the manner in which certain of the innovations made may alter the ability of ICTY to provide a fair trial.
Cameron May International Law & Policy
Criminal procedure (International law), International crimes, International criminal courts
Criminal Procedure | International Law | Law
Megan A. Fairlie, Revised Pre-Trial Procedure Before the ICTY from a Continental/Common Law Persepective, in INTERNATIONAL CRIMINAL PROCEDURE : TOWARDS A COHERENT BODY OF LAW, (Göran Sluiter and Sergey Vasiliev eds., 2009).