Skip to main content Accessibility help
×
Home
  • Print publication year: 2011
  • Online publication date: August 2011

2 - Creation and amendment of rules of international criminal procedure

Summary

Two of the notable differences among the various international criminal tribunals are the manner in which their respective procedural architectures are created, and the constitutional frameworks for their amendment. Though the legitimacy of international criminal procedure as a body of law has begun to receive more academic attention, an infrastructural issue of considerable significance to the debate remains relatively unexplored: how rules and regulations that bind parties and courts (and indeed, states, international organisations, and individuals through orders of these courts) are created and amended.

The judges of the ICTY and the ICTR (jointly, ad hoc Tribunals) have a unique, and now well entrenched, power to create and amend their own rules as ‘quasi-legislators’. The drafters of the Rome Statute, however, rejected such an approach, opting instead for greater control of the procedural framework by the Assembly of States Parties (ASP) – an approach reflected more in form than in substance, as discussed below. Diversifying further the rule-making frameworks, the internationalised tribunals have opted either for the largely wholesale adoption of the ICTY or ICTR Rules, as in the case of the SCSL; or the application of the rules of domestic courts, in the cases of the Cambodian Extraordinary Chambers and the now-defunct East Timor Special Panels.

This chapter discusses the manner in which rules of procedure and evidence have been created and how they are amended in the different international criminal tribunals.

Boas, Gideon, ‘A Code of Evidence and Procedure for International Criminal Law? The Rules of the ICTY’, in Boas, Gideon and Schabas, William A. (eds.), International Criminal Law Developments in the Case Law of the ICTY (2002), pp. 9–18
Tavernier, Paul, ‘The Experience of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, (1997) 321 International Review of the Red Cross605
Gowlland-Debbas, Vera, ‘Security Council Enforcement Action and Issues of State Responsibility’, (1994) 43 International Criminal Law Quarterly55
Oosthuizen, Gabriël H., ‘Playing Devil's Advocate: The United Nations Security Council Is Unbound by Law’, (1999) 12 Leiden Journal of International Law549
Fairlie, Megan, ‘The Marriage of Common and Continental Law at the ICTY and its Progeny: Due Process Deficit’, (2004) 4 International Criminal Law Review243, 260–262
Morris, Virginia and Scharf, Michael P., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (1995), pp. 211–310
Robinson, Patrick L., ‘Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia’, (2000) 11 European Journal of International Law569
Mundis, Daryl A., ‘From “Common Law” Towards “Civil Law”: The Evolution of the ICTY Rules of Procedure and Evidence’, (2001) 14 Leiden Journal of International Law367
Damaška, Mirjan, ‘The Uncertain Fate of Evidentiary Transplants: Anglo-American and Contemporary Experiments’, (1997) 45 American Journal of Comparative Law839
Tulkens, Françoise, ‘Main Comparable Features of the Different European Criminal Justice Systems’, in Delmas-Marty, Mireille (ed.), The Criminal Process and Human Rights: Toward a European Consciousness (1995), p. 5
Schabas, William A., An Introduction to the International Criminal Court (3rd edn 2009), p. 12
Swart, Mia, ‘Ad Hoc Rules for Ad Hoc Tribunals? The Rule-Making Power of the Judges of the ICTY and ICTR’, (2002) 18 South African Journal of Human Rights570, 576–577
Boas, Gideon, ‘Comparing the ICTY and the ICC: Some Procedural and Substantive Issues’, (2000) 47 Netherlands International Law Review267, 274
Fairlie, Megan, ‘Rulemaking from the Bench: A Place for Minimalism at the ICTY’, (2004) 39 Texas International Law Journal257, 261–262
Mundis, Daryl A., ‘The Legal Character and Status of the Rules of Procedure and Evidence of the ad hoc International Criminal Tribunals’, (2001) 1 International Criminal Law Review191, 198
Kwon, O-Gon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’, (2007) 5 Journal of International Criminal Justice360, 363–368
Ratner, Steven R., Abrams, Jason S., and Bischoff, James L., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd edn 2009), p. 221
Cogan, Jacob Katz, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’, (2002) 27 Yale Journal of International Law134, 135
Boas, Gideon, The Milošević Trial: Lessons for the Conduct of International Criminal Proceedings (2007), pp. 65–69
Boas, Gideon, ‘The Case for a New Appellate Jurisdiction for International Criminal Law’, in Göran Sluiter and Sergey Vasiliev (eds.), International Criminal Procedure: Towards A Coherent Body of Law (2008), pp. 439–442
Boas, Gideon, Bischoff, James L., and Reid, Natalie L., Forms of Responsibility in International Criminal Law (2007), p. 26 n. 94 and cases cited therein
Boas, Gideon, Bischoff, James L., and Reid, Natalie L., Elements of Crimes Under International Law (2008) (‘Boas, Bischoff, and Reid, Elements of Crimes’), pp. 344–345
Kreß, Claus, ‘The Procedural Texts of the International Criminal Court’, (2007) 5 Journal of International Criminal Justice537, 537
Taylor, B. Don III, ‘Demystifying the Procedural Framework of the International Criminal Court: A Modest Proposal for Radical Revision’, in Carsten Stahn and Göran Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), pp. 755–756
Gurmendi, Silvia Fernández and Friman, Håkan, ‘The Rules of Procedure and Evidence and the Regulations of the Court’, in José Doria, Hans-Peter Gasser, and M. Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court (2009), pp. 797, 808
Broomhall, Bruce, ‘Article 51 Rules of Procedure and Evidence’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn 2008), pp. 1037–1039
Friman, Silvia A. Fernández de Gurmendi and Håkan, ‘The Rules of Procedure and Evidence of the International Criminal Court’, (2000) 3 Yearbook of International Humanitarian Law289, 290–291
McCormack, Timothy L.H. and Simpson, Gerry, ‘Achieving the Promise of Nuremberg: A New International Criminal Law Regime’, in Timothy L.H. McCormack and Gerry Simpson (eds.), The Law of War Crimes, National and International Approaches (1997), pp. 248–249
Cassese, Antonio, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, (1999) 10 European Journal of International Law144, 163
Behrens, Hans-Jörg, ‘Article 52 Regulations of the Court’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article (1999), p. 683
Stahn, Carsten, ‘Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55’, (2005) 16 Criminal Law Forum3