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Recent amendments to the Rules of Procedure and Evidence for the International Criminal Court (“ICC”) give Trial Chambers the discretion to admit unexamined, party-generated witness statements in lieu of live testimony. The use of this evidence—which undermines the right of confrontation and prevents the judges from independently assessing witness credibility—is now a hotly contested issue in each of the Court’s ongoing trials. As ICC judges grapple with the thorny question of how to implement these new provisions without undermining the right to a fair trial, this Article, which is the first to examine the rule amendments and their early implementation, looks to the history of international criminal justice for answers. It traces the tension between more efficient written testimony and the importance of assuring procedural fairness from Nuremberg and Tokyo through to the present day. It focuses in particular on the experience of the International Criminal Tribunal for the former Yugoslavia (ICTY), whose rules served as a model for the ICC revisions, and it analyzes each of the rules imported from the ICTY from adoption to application. Through its thorough analysis of ICTY and ICC precedent, this Article identifies the fairness concerns that ought to shape the Court’s implementation of its recently revised rule, and highlights instances wherein the ICC has already fallen short of the mark.

The goal of this article is to encourage the international legal community to revisit its tacit acceptance of ICTY practice as imitable precedent. This can lead to a debate that prompts more careful consideration of, and seeks out fairness-enhancing alternatives to, the use of witness statements at the International Criminal Court.