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Once the pre-trial briefs have been submitted, the case is passed to the Trial Chamber, which holds a pre-trial conference with both parties. This is the stage which most closely resembles inquisitorial mechanisms, as the Trial Chamber is able to alter the proposed activities of the parties during the case, by shortening the time estimates for cases, limiting the number of witnesses, and selecting representative crime sites or incidents that repre- sent the crimes charged. The Trial Chamber holds a similar conference prior to the opening of the defense’s case, with the same powers to limit witnesses and time. These powers differ signifi- cantly from the adversarial procedure in the early years at the ICTY, and they give the judge signifi- cantly increased powers to control proceedings, more familiar to an inquisitorial trial.
In order to assist the judges with their increased procedural powers, the ICTY also adopted the use of a ‘file’, similar to the inquisitorial dossier, which includes pre-trial briefs, all party filings, status conference transcripts, and witnesses and exhibits. Unlike in a pure adversarial system, the function of this file is to assist the judges in their management functions, rather than to empower them as true inquisitorial impartial investigators.
Another similarity with the inquisitorial system is scant rules of evidence at the ICTY, which permits the submission of any relevant evidence of pro- bative value, unless it is significantly outweighed by the need to ensure a fair trial.
Through the procedural reforms at the ICTY we can see a clear shift towards a preference for inquisitorial mechanisms. At the ICTY, these re- forms were introduced with the goal of speeding up trials, however managerial judging has proven to be a failure in the international context, and has actually had the effect of lengthening trial times because of all the additional pre-trial re- quirements placed on the parties. Nonetheless, the reforms have resulted in a hybridization of procedure at the Tribunal between adversarial
ILSA Quarterly » volume 22 » issue 3 » February 2014 Fall 2014
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