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Direct Enforcement of International Criminal Law

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Multilayered Structures of International Criminal Law
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Abstract

Procedures at the International Criminal Court (ICC) and ad hoc international criminal tribunals are based on the adversarial system in which live testimony and cross-examination at trial by contesting parties have significant meaning and the role of judges remains comparatively modest. Meanwhile, these judicial organs that are entrusted with objective truth seeking have also demonstrated some inquisitorial characteristics from the very outset. The necessity to expedite proceedings on large-scale international crimes became obvious through actual judicial practice at these forums, and procedural rules of inquisitorial characteristics have been further introduced. However, the introduction of such inquisitorial attributes as a wide recognition of written evidence, which is apparently necessary for efficient proceedings on large-scale international crimes, must be effectuated in a deliberate manner so as not to bring about injustice due to the inappropriate mixing of two different systems.

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Notes

  1. 1.

    See the comments made by A. Cassese, the first President of the ICTY (Statement by the President Made at a Briefing to Members of Diplomatic Missions, IT/29, 11 February 1994, reproduced in Morris and Scharf 1995, pp. 649–650).

  2. 2.

    Langer (2005), pp. 857–858.

  3. 3.

    Whereas criminal procedures vary even among common law states that inherited the adversarial system, its basic characteristics may yet be observed broadly. See Peake (2014), pp. 186–194; Cassese et al. (2013), pp. 329–340; Buisman et al. (2010), pp. 7–8; Murphy and Baddour (2010), pp. 97–98; Langer (2005), pp. 838–847; Ambos (2003), pp. 2–5; Frei and Trechsel (1990), pp. 80–82.

  4. 4.

    See generally on this point, Langer (2005), pp. 868–874. The Expert Group appointed by the United Nations Secretary-General to review the functions of the ad hoc international criminal tribunals pointed out in its report that the major concern of UN officials, UN member states, and all the organs of the tribunals was the slowness of the proceedings at the tribunals (ibid., p. 870).

  5. 5.

    With respect to the comparison between the adversarial and inquisitorial systems, see the academic writings cited in Footnote 3 above. See also Buisman et al. (2010), pp. 7–95.

  6. 6.

    Milanović (2011), pp. 25–52.

  7. 7.

    U.N. Doc., S/RES/1422 (2002). The adoption of the resolution was necessary to counter the US threats to veto against future peacekeeping operations. See Stahn (2003), pp. 85–86.

  8. 8.

    This Security Council resolution was renewed by the adoption of Resolution 1487 (U.N. Doc., S/RES/1487 (2003)) in the following year. See for details, Hall (2004), p. 123.

  9. 9.

    Article 15bis(5) reads, “[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Delegates at the Review Conference in Kampala introduced this provision with the clear intention of excluding states that are not parties to the Statute from jurisdiction whether they are aggressors or victims (McDougall 2013, p. 256).

  10. 10.

    Report of the Working Group on the Crime of Aggression, Review Conference of the Rome Statute, RC/5, 10 June 2010, para. 12. See also Werle and Jessberger (2020), pp. 611–613. For detailed discussions on the interpretation of Article 121 with respect to the exercise of jurisdiction on the crime of aggression, see Zimmermann (2012), pp. 215–220; Van der Vyver (2010–2011), pp. 39–46; Kreß and Holtzendorff (2010), pp. 1194–1199. It was commonly understood by the members of the Special Working Group on the Crime of Aggression, which was established by the Assembly of States Parties of the ICC, that “the territory of the victim state forms part of the territory on which the crime of aggression is committed” within the meaning of Article 12 of the ICC Statute (ibid., p. 1197, fn. 67).

  11. 11.

    Resolution ICC-ASP/16/Res.5 (2017), ICC-ASP/16/20.

  12. 12.

    The Preamble to the ICC Statute states, “the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions”.

  13. 13.

    Rule 77 of the Rules of Procedure and Evidence of the ICC also obligates the Prosecutor to permit the defense to inspect any evidence in the possession or control of the Prosecutor that is material for the preparation of the defense. However, Article 68(5) of the ICC Statute stipulates that the Prosecutor may withhold the evidence and instead submit its summary where the security of a witness may be seriously endangered, provided that “[s]uch measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”

  14. 14.

    Zahar and Sluiter (2008), pp. 374–375. See, for instance, the struggle between the Prosecutor and the Trial as well as Pre-Trial Chambers on the disclosure of exculpatory evidence in Lubanga (Lindsay 2010, pp. 179–180). Caianiello suggests that the Prosecutor’s failure to disclose evidence should lead to sanctions such as the inadmissibility of the evidence in question and the dismissal of charges in serious cases (Caianiello 2011, pp. 312–313).

  15. 15.

    Fairlie (2017), pp. 98–104. Fairlie comments, “[i]n effect, virtually all the available evidence supports the finding that ICC investigations and trials are as adversarial as their ICTY analogues” (ibid., p. 104). See also Buisman and Hooper (2017), pp. 532–533.

  16. 16.

    Jackson and Brunger (2014), p. 181. With regard to criticism on this point, see Bibas and Burke-White (2010), pp. 697–698.

  17. 17.

    Article 59(4) of the ICC Statute.

  18. 18.

    It is pointed out that the requirement of “urgent and exceptional circumstances” probably reflects the original version of the ICTY Rules of Procedure and Evidence, which provided for in the same way at the time of the adoption of the ICC Statute (Knoops 2005, p. 149). See Rule 65 (B), Rules of Procedure and Evidence as Amended 9 & 10 July 1998, IT/32/Rev. 13. However, it should be noted that such requirement in the rules of the ICTY was later deleted (Knoops 2005, p. 149). Rule 65(B) of the ICTY Rules of Procedure and Evidence as Amended 8 July 2015 provides, “[r]elease may be ordered at any stage of the trial proceedings prior to the rendering of the final judgement by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. The existence of sufficiently compelling humanitarian grounds may be considered in granting such release.”

  19. 19.

    War Crimes Research Office (2015), pp. 16–17; Lindsay (2010), p. 192.

  20. 20.

    Ibid., p. 196.

  21. 21.

    Wheeler (2019), pp. 51–62; Behrens (1998), p. 439.

  22. 22.

    Wheeler (2019), pp. 120–121, 123–131.

  23. 23.

    Peake (2014), p. 190; Cassese et al. (2013), p. 330.

  24. 24.

    With respect to the definition of hearsay evidence indicated by the ICTY, see Sect. 4.2.4.2.

  25. 25.

    Written evidence was widely admitted in the Nuremberg and Tokyo Trials, although they adopted the adversarial system. Especially in the Tokyo Trial, directly incriminating written evidence was admitted in principle without cross-examination. Such procedural features inevitably affected the fairness of the trial. See Fairlie (2017), pp. 79–83.

  26. 26.

    See Sect. 4.2.4.2.

  27. 27.

    Fairlie (2017), pp. 130–154. Judge Ozaki underlined this point, stating, “witness statements at the ICC …are taken by a party (often by an investigator) mainly in order to gather evidence to mount a case against an accused, and without the supervision of any impartial arbiter” (Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence, Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 23 November 2010, para. 11, cited in Fairlie 2017, p. 103). Fairlie points out that several important safeguards on the application of the corresponding rules of the ICTY, which were introduced by the case law of the Tribunal to provide a fair trial, have not been fully adopted in the practice of the ICC (ibid., pp. 130–154). As Damaška cautions, “[t]hose contemplating to combine common law and civil law approaches to factfinding should be especially sensitive to the potential costs of normative shortcuts to procedural reform; institutional differences between the two Western legal families capable of affecting the factfinding style are quite considerable” (Damaška 1997, p. 839).

  28. 28.

    Cassese et al. (2013), pp. 338–339, 389–390; Bassett (2001), pp. 1130–1131. A decision made by a jury is accompanied by legitimacy that is grounded on “its supposedly popular source” (Langer 2005, pp. 845–846).

  29. 29.

    Ibid.

  30. 30.

    See Article 54(1)(a) of the ICC Statute.

  31. 31.

    The decision of the ICTY in Kupreškić stated, “… it should be noted that the Prosecutor of the Tribunal is not, or not only, a Party to adversarial proceedings but is an organ of the Tribunal and an organ of international criminal justice whose object is not simply to secure a conviction but to present the case for the Prosecution, which includes not only inculpatory, but also exculpatory evidence, in order to assist the Chamber to discover the truth in a judicial setting” (Decision on Communications Between the Parties and Their Witnesses, Prosecutor v. Zoran Kupreškić et al., IT-95-16-T, 21 September 1998).

  32. 32.

    See generally Buisman and Hooper (2017), pp. 519–558; Gibson and Lussiaà-Berdou (2010), pp. 326–327; Jackson (2009), pp. 25–28.

  33. 33.

    Fedorova (2017), pp. 211–212; Buisman and Hooper (2017), p. 520; Jackson (2009), p. 25.

  34. 34.

    Tadić (AC), para. 52.

  35. 35.

    Zahar and Sluiter (2008), pp. 365–366. Rule 54bis(A) requires the requesting party to indicate how the documents or information in question are relevant to the case and explain the steps already taken to secure the assistance of the state concerned.

  36. 36.

    Meanwhile, disclosure obligation on the part of the defense was also expanded through the practice of the ad hoc international criminal tribunals. It is pointed out that the obligation to disclose witness particulars such as the place of residence and family background causes difficulties for the defense in obtaining the attendance of witnesses out of fears for their safety (Gibson and Lussiaà-Berdou 2010, pp. 338–344).

  37. 37.

    Also, the Prosecutor shall generally make relevant materials available to the defense in electronic form (Rule 68(ii)). Schuon suggests introducing an open file discovery that reflects civil law style in considering such burden on the Prosecutor as well as the need to support the defense in the preparation of their cases (Schuon 2010, pp. 134–135). It is also pointed out that the limited access to case material by judges and the defense obstructs truth finding at the tribunals (ibid., p. 194).

  38. 38.

    See McIntyre (2003), pp. 293–295.

  39. 39.

    Decision on the Defence Motion for Disclosure, Rules 66, 70(A), and 73 of the Rules, Prosecutor v. Élie Ndayambaje, ICTR-96-8-T, 25 September 2001, para. 5. See also McIntyre (2003), p. 297; Schuon (2010), p. 113. It should be noted, however, that this review process is not expected where the exculpatory evidence in question is unknown to the defense as was the case in Kordić and Čerkez. See McIntyre (2003), p. 294.

  40. 40.

    See Fedorova (2017), pp. 227–230; Gibson and Lussiaà-Berdou (2010), pp. 335–338. It is contrastive for the ICC to take such severe measures as the withdrawal of charges against violations of disclosure obligations on the part of the prosecution. See Fedorova (2017), pp. 215–216, 232–233. The Extraordinary Chambers in the Courts of Cambodia also takes severe sanctions as the exclusion of the evidence that was not disclosed before the opening of the trial. See Gibson and Rudy (2009), pp. 1012–1014. With respect to the Extraordinary Chambers, see Sect. 7.2.4 of Part III.

  41. 41.

    Rule 61(C) provides that if the Chamber is satisfied that “there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it shall so determine.”

  42. 42.

    Sentencing Judgment, Prosecutor v. Momir Nikolić, IT-02-60/1-S, 2 December 2003, para. 50.

  43. 43.

    Rule 51 provides, “(A) The Prosecutor may withdraw an indictment: (i) at any time before its confirmation, without leave; (ii) between its confirmation and the assignment of the case to a Trial Chamber, with the leave of the Judge who confirmed the indictment, or a Judge assigned by the President; and (iii) after the assignment of the case to a Trial Chamber, by motion before that Trial Chamber pursuant to Rule 73.”

  44. 44.

    Schuon (2010), p. 199.

  45. 45.

    Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc., A/49/342, S/1994/1007, 29 August 1994, para. 74. See also Turner and Weigend (2013), p. 1377.

  46. 46.

    Schuon (2010), pp. 203–206.

  47. 47.

    Ibid., pp. 221–224; Turner and Weigend (2013), pp. 1388, 1406–1408.

  48. 48.

    Schuon (2010), pp. 224–225.

  49. 49.

    Ibid., pp. 210–218, 251–254.

  50. 50.

    Bibas and Burke-White (2010), pp. 687–688. See also Turner and Weigend (2013), pp. 1405–1406; Schuon (2010), pp. 206–208.

  51. 51.

    Turner and Weigend (2013), p. 1385; Schuon (2010), pp. 198–199.

  52. 52.

    Turner and Weigend (2013), p. 1408; Bibas and Burke-White (2010), pp. 685–689.

  53. 53.

    Decision, Prosecutor v. Jean-Bosco Barayagwiza, ICTR-97-19-AR72, 3 November 1999, para. 74.

  54. 54.

    Decision on Interlocutory Appeal Concerning Legality of Arrest, Prosecutor v. Dragan Nikolić, IT-94-2-AR73, 5 June 2003, paras 29–30. The Chamber noted: “In the opinion of the Appeals Chamber, the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation. Therefore, the Appeals Chamber does not consider that in cases of universally condemned offences, jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from international justice, whatever the consequences for the international responsibility of the State or organization involved (ibid., para. 26).” See, on this point, Knoops (2005), pp. 35–36.

  55. 55.

    Bibas and Burke-White (2010), pp. 696–697.

  56. 56.

    Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc., S/25704, 3 May 1993, para. 11.

  57. 57.

    Langer (2005), p. 872.

  58. 58.

    Ibid., p. 873.

  59. 59.

    The case that judges at the international criminal courts are expected to deliver a reasoned judgment also enhances the necessity for them to positively get involved in the trial proceedings. See Schuon (2010), p. 191.

  60. 60.

    Interference by judges on the number of witnesses is not so frequent as that on time limit. See Wierda (2003), p. 403.

  61. 61.

    See for details, Wheeler (2019), pp. 42–51.

  62. 62.

    See for details, ibid., pp. 118–123.

  63. 63.

    Article 5(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (European Convention on Human Rights) also provides that the arrested or detained person shall be brought to trial within a reasonable time or be released pending trial.

  64. 64.

    Knoops (2005), pp. 153–154.

  65. 65.

    Schuon (2010), pp. 137–138. Contrastively, it is otherwise argued that international prosecution of serious international crimes requires rigorous exclusionary rules of evidence since materials claimed to be evidence are so expansive and complex, or occasionally fabricated, reflecting more or less subjective description of armed conflicts by respective belligerent parties (Murphy and Baddour 2010, pp. 152–156). Notwithstanding, it is noteworthy that “fiendishly complex exclusionary rules” in national legal systems in the common law jurisdiction have themselves been simplified to allow fairly obtained documents as evidence (Gaynor 2013, pp. 1072–1073, 1080).

  66. 66.

    Bantekas (2010), pp. 525–527.

  67. 67.

    See Halpern (2018), pp. 116–120; Schuon (2010), pp. 143–147; Ambos (2003), p. 23. The Appeals Chamber indicated that hearsay evidence is “the statement of a person made otherwise than in the proceedings in which it is being tendered, but nevertheless being tendered in those proceedings in order to establish the truth of what that person says” (Decision on Prosecutor’s Appeal on Admissibility of Evidence, Prosecutor v. Zlatko Aleksovski, IT-95-14/1, 16 February 1999, para. 14).

  68. 68.

    Ibid., para. 15.

  69. 69.

    Rule 90(A), Rules of Procedure and Evidence (Adopted on 11 February 1994), U.N. Doc., IT/32, 14 March 1994.

  70. 70.

    With regard to the definition of “the acts and conduct of the accused”, see Nerenberg and Timmermann (2010), pp. 462–463; Gaynor (2013), pp. 1052–1053. At the ICTY, Rule 92bis was applied to written statements or transcripts that were prepared by the parties to the proceedings, whereas at the ICTR, the same rule was applied to non-contemporaneous accounts of events. In the latter case, the admissibility of reports that were made by UN officials after events, for instance, is substantially restricted. See for details, Gosnell (2010), pp. 399–413.

  71. 71.

    Fairlie (2017), pp. 87–93; Caianiello 2011, pp. 315–316. See also Gaynor (2013), p. 1049. The same kind of amendments was also introduced in the rules of the ICTR and Special Court for Sierra Leone. See McDermott (2013), p. 972. It is pointed out, however, that the acceptance of written evidence has not actually expedited the proceedings and has rather increased out-of-court engagement, pretrial proceedings, and the number of evidence in total. See Fairlie (2017), pp. 113–117. See also Murphy and Baddour (2014), pp. 374–380.

  72. 72.

    With regard to each amendment, see McDermott (2013), pp. 972–973; Gaynor (2013), pp. 1050–1052; Nerenberg and Timmermann (2010), pp. 471–474. Caianiello criticized that the evidentiary system shifted “toward the admissibility of any type of written evidence” (Caianiello 2011, pp. 315–316). It is also pointed out that these amendments have further complicated the proceedings as they require additional examination on the applicability of respective rules. See Fairlie (2017), pp. 116–117; McDermott (2013), pp. 986–987.

  73. 73.

    See Fairlie (2017), pp. 93–104; Schuon 2010, p. 147; Jackson (2009), pp. 31–33.

  74. 74.

    Caianiello (2011), pp. 313–315; Zahar and Sluiter (2008), pp. 341–346. However, it remains difficult for the Trial Chamber that is afforded case information as provided for by contesting parties to precisely differentiate such “important” or “critical” evidence from others. See Fairlie (2017), pp. 110–111. In consideration of concerns for inappropriate use of written evidence at trials and also from the viewpoint of the efficiency of criminal proceedings, Schuon suggests that international criminal courts adopt the inquisitorial system in abandoning cross-examination and entrusting judges or other impartial officials with the investigation and presentation of evidence at trials (Schuon 2010, pp. 170–171). See also Boas (2003), pp. 26–27. Jackson suggests developing procedures neither dominated by contesting parties nor by an investigating judge, by introducing a “one case” approach in which the Pre-Trial Chamber plays an important role in creating one dossier together with the prosecution and defense. See Jackson (2009), pp. 37–39.

  75. 75.

    See Aleksovski, para. 15; Decision on Admissibility of Prosecution Investigator’s Evidence, Prosecutor v. Slobodan Milošević, IT-02-54-AR73.2, 30 September 2002, para. 18, and other cases cited in Bantekas (2010), pp. 538–540. Meanwhile, international case law has not been consistent in deciding the probative value of indirect evidence. See McDermott (2013), pp. 981–988.

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Sato, H. (2021). Direct Enforcement of International Criminal Law. In: Multilayered Structures of International Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-030-83845-4_4

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  • DOI: https://doi.org/10.1007/978-3-030-83845-4_4

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