Int’l Criminal Law
Generally during an inquisitorial trial the accused is given the opportunity to speak first, and is then questioned by the judge on his recollection of the facts. When calling subsequent witnesses the judge takes the lead in questioning, and the prosecution and defense are able to question those witnesses after the judge is finished. The defense can request that the judge call certain witnesses or introduce certain evidence into the proceedings. Along with being a part of the of- ficial investigation, the judge is also the trier of fact and law; there is no delegation to a lay jury. Because there is no jury, there are also few for- mal rules of evidence as it is assumed that a pro- fessional judge is able to weigh the evidence ac- cording to its merit.
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Stark differences exist between the two systems, and it is particularly interesting to see how the roles of the parties differ under each system, and how power is distributed between them. Each of the international courts and tribunals have blend- ed certain features of both systems together in creating their specific international criminal pro- cedure, and this article will now assess how that has been achieved at different tribunals.
Procedure at the International Criminal Tribunal for the Former Yugoslavia
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was the first international crimi- nal court since Nuremberg and Tokyo. It adopted an adversarial preference in its original Rules of Procedure and Evidence (RPEs). Consequently, in the early years of the ICTY the parties followed adversarial processes, with the judge playing a passive role, and the prosecution and defense in competition with each other to prove its case. Like in a pure adversarial system, the prosecutor did not need to investigate inculpatory evidence, and the defense could develop its case and call witnesses in whatever way it saw fit.
Unfortunately, an adversarial model proved in-
adequate for an international tribunal faced with cases of the magnitude and scope of the ICTY. The tribunal was plagued by criticism for failing to deal with cases quickly, which led to the introduc- tion of a procedural mechanism common to U.S. civil procedure known as managerial judging.
Managerial judging refers to a mechanism that encourages the active participation of the judge in order to expedite proceedings, and requires the judge to abandon its erstwhile passive func- tion and instead adopt an active role in pre-trial and trial proceedings, more familiar to the judges role in an inquisitorial system. Under the mana- gerial reforms, the ICTY RPEs turned to embrace more inquisitorial procedures, and moved some case management powers out of the hands of the prosecution and defense and into the hands of the judge.
The goal of this transfer of power was to expe- dite proceedings by requiring a Pre-Trial judge to establish a work-plan for the parties to assist them to trial. This requires the judge to become much more intimately acquainted with the facts of the case than under the previous adversarial RPE’s to enable him to execute his management functions effectively. Under these reforms, the role of the parties is also altered and, instead of a strict adversarial competition between the two, both prosecution and defense are required to cooperate and communicate with each other. The prosecution must disclose its case strat- egy, and both parties must cooperate with each other to settle issues of fact prior to trial so that those factual matters do not need to be adjudi- cated. One of the central devices introduced at the ICTY to facilitate this are pre-trial briefs, un- der Rule 65ter(E). The prosecutor must disclose a detailed list of witnesses and the factual basis on which they are called, as well as giving time estimates. Likewise, the Defense in its pre-trial brief must disclose any defenses it will rely upon, and any issues it has with the prosecution’s case, and why.
ILSA Quarterly » volume 22 » issue 3 » February 2014
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