The pre-trial phase at the international criminal tribunals begins with the prosecution's submission of proposed charges and ends with the commencement of trial. During this period, which can last up to several years, the participants prepare for trial in those cases where the proposed charges have passed judicial scrutiny, and the accused has not pleaded guilty to some or all of those charges. At the ICC, this stage takes place under the supervision and control of both the pre-trial and trial chambers, as a case is transferred from one to the other after the charges have been confirmed, and typically well before opening statements. At the SCSL, the same judges hear and manage the case through the pre-trial and trial phases. While the same arrangement may occur at the ad hoc Tribunals in some cases, in others, control of each phase is tasked to a different chamber.

This chapter examines six sets of rules and practices that comprise and define the pre-trial phase of the proceedings. Section 6.1 discusses the law governing the submission, review, confirmation, amendment, and withdrawal of charges. Section 6.2 reviews the joinder and severance of charges, accused, and indictments or trials – tools which facilitate the large trials that have come to characterise proceedings at the ICTY, ICTR, and SCSL, and which may yet become an important feature of ICC procedure.

Few today would dispute the existence of substantive international criminal law and its legitimacy under international law. With some noteworthy exceptions, it is well accepted that the core categories of crimes, their underlying offences, and the forms of responsibility listed in the statutes of the international and internationalised criminal courts and tribunals (collectively, ‘international criminal tribunals’) are established in customary international law, treaty law or general principles of international law. The same cannot be said, however, for the procedural rules that govern the conduct of international criminal proceedings. Despite fifteen years of procedural activity at the international criminal tribunals, generating far more jurisprudence on matters of procedure than on substantive law, considerable scepticism remains about the legitimacy of international criminal procedure as a body of international law in its own right.

This third volume of the International Criminal Law Practitioner Library Series presents international criminal procedure as a comprehensive and coherent body by describing and explaining the framework within which substantive international criminal law is developed and applied at the tribunals. The first three chapters look at the infrastructure of the international criminal tribunals, including the sources of rules of international criminal procedure and the tribunals' relationship with national courts. The remaining chapters examine the key procedures as defined and elaborated in the governing instruments and jurisprudence of the international criminal tribunals, including those relating to investigations, detention, assignment of defence counsel and self-representation, the pre-trial and trial processes, victim participation, evidence, judgement, sentencing, and appeal.

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.

This volume examines the tangible body of rules and practices applied in the international criminal tribunals during the various steps of an international criminal prosecution: investigation; arrest; detention; charging; disclosure and other pre-trial preparation; guilty pleas; trial; appeal and other post-conviction relief; punishment; and imprisonment. It also reviews other procedures essential to conducting effective investigations and fair and expeditious trials, including rules and practices on admissibility of cases, evidence, and case management; and rules relating to the issuing of orders to states and private individuals; to the assignment of defence counsel and self-representation; the election, appointment, and recusal of judges; victim participation; and reparations.

In considering this vast array of issues, we have endeavoured, first and foremost, to explain the rules of procedure and give examples of how they function in practice. At the same time, we have sought to grapple with some of the more fundamental themes that are intertwined in the legal framework of international criminal procedure, including the ways in which international criminal tribunals and their creators constructed this area of law; how they have shaped its evolution to meet new challenges and changing circumstances; whether this effort has been successful; and whether it has adversely affected other important interests. Many of the rules of international criminal procedure seek a balance between two interests that are frequently in opposition. The international community, and especially victims, demand swift and effective justice for those who are responsible for mass atrocities.

National courts bear the primary responsibility for trying international crimes, under one or more of five bases of jurisdiction recognised in international law: territoriality, nationality, the protective principle, passive personality, and universality. Yet for a variety of reasons, states have usually failed to exercise any of these forms of jurisdiction to prosecute domestically. Most common among these reasons are a lack of domestic implementing legislation; a structural inability to prosecute, such as a dearth of judicial competence or catastrophic events damaging the legal system's integrity; or an unwillingness to prosecute, as could result from a judiciary that is corrupt, biased, or not independent from political leaders' whims. Seeking to prevent impunity for those who would otherwise escape prosecution in a national court, the international community has set up various international and hybrid criminal tribunals in the last two decades as supplements to or substitutes for national courts. In the principal tribunals examined in this series – the ICTY, ICTR, ICC, and SCSL – the tribunal's statute does not purport to strip national courts of jurisdiction, but instead establishes the tribunal's jurisdiction as concurrent with that of national courts.

Concurrent jurisdiction reinforces the obligation of states, in the first instance, to prosecute international crimes, but also acknowledges the inability of international tribunals to handle the hundreds or thousands of potential cases themselves.

In any criminal justice system, including those set up to try persons thought responsible for international crimes, fundamental human rights principles demand that accused persons have the ability to defend themselves against criminal allegations. Among these fundamental rights are the right to be represented by qualified defence counsel, at no cost if the accused cannot afford counsel; and, with certain limitations developed in the jurisprudence, the right to conduct their own defence. Defence representation before international criminal tribunals can take many forms, including privately funded defence counsel; tribunal-funded defence counsel; self-representation, which implicates a range of procedural and resource issues; and even the use of amici curiae to perform many of the tasks traditionally performed by defence counsel. There are two basic categories of legal representation in international criminal law: representation by counsel and self-representation. As will be discussed in some depth, these two different models of representation give rise to variants that impact significantly on the capacity of international criminal tribunals to deliver a fair trial.

This chapter considers the regulatory structure and jurisprudence relating to these different procedural models. Like most chapters in this volume, the chapter focuses mainly on the ICC, ICTY, and ICTR, with occasional reference to the SCSL, Special Tribunal for Lebanon (‘STL’), or another internationalised tribunal if their relevant procedures illustrate an innovative approach or otherwise aid the analysis of the key issues surrounding representation of accused persons. Where procedures across the tribunals vary significantly, we discuss each tribunal in a separate subsection.

Although justice for the victims of mass atrocity – generally cast as retribution for the offender – has long been one of the central themes justifying international criminal trials, victims have not, until relatively recently, played a central role. Often characterised as a direct result of the domination of the adversarial approach at the ICTY, ICTR, and SCSL, victims before those courts are essentially treated as witnesses. Their direct participation in the proceedings is strictly limited to giving evidence. Their input at other stages of the process is formally non-existent, their right to reparations is limited, and their practical influence negligible.

The Rome Statute transformed the role and status of victims in international criminal procedure. As a result, victims in proceedings before the ICC enjoy a panoply of participatory rights. Although their status at various stages of the proceedings falls just short of that of the parties, their direct participation is guaranteed. Their rights to orders for reparation are greatly expanded, as is at least the possibility of collecting such reparations. Their influence on the Court's first cases has already been important, and their role in the work of the ICC promises to be considerable.

While this seminal development in international criminal procedure has been lauded by many, several constituencies remain suspicious or conflicted. The Prosecutors are understandably wary of any perceived encroachment on their independence in deciding what cases to charge, or interference with their control of the case at trial.

Trial is the central and most visible phase of an international criminal prosecution. In all the international criminal tribunals examined in this series, it is the public forum in which the prosecution and defence question witnesses, present documentary and other evidence, and make legal arguments before a panel of judges who serve as finders of both fact and law. Since the majority of accused before international criminal tribunals choose to contest the charges against them rather than plead guilty, most cases to date have featured a trial, and the trial has usually been lengthy. Rarely has a trial chamber completed a trial in under a year, and trials lasting two or more years are common. While the extended length of these trials has been criticised for potentially violating the rights of accused, the reasons for delays are complex. Delay often occurs as a result of the unavoidable confluence of a challenging political context, complex substantive law, a heavy caseload, and persistent scarcity of resources.

This chapter explores the trial phase of international criminal prosecutions, focusing on the ad hoc Tribunals, the ICC, and the SCSL. While differences exist in the trial procedures of these tribunals, trial before all of them is largely adversarial and the corresponding rules are similar in nature, and they will thus be discussed in tandem. Section 7.1 begins by looking at the process for appointing judges to a trial bench.

From the very first version issued at the ICTY in 1994, proceedings at each of the major international criminal tribunals have been governed in part by a body of rules termed the ‘Rules of Procedure and Evidence’. Although this title may suggest that evidentiary law is given roughly equal treatment in these provisions as other areas of procedure, this is far from the case. The ICTY Rules contain 164 rules with multiple paragraphs and subparagraphs, but only seventeen pertain to the manner in which proposed evidence becomes part of the trial record and the factual basis on which the final judgement rests. The 157 provisions in the ICTR Rules include only fourteen such provisions; the 225 provisions in the ICC Rules list only thirteen, with fewer than a handful of additional relevant provisions in the Rome Statute and Court Regulations; and of the SCSL Rules' 141 provisions, a mere fourteen relate to the law of evidence. As the jurisprudence interpreting these provisions amply demonstrates, their sparseness is no accident. To the contrary, the rules are drafted and applied to ensure maximum flexibility for chambers in their efforts to run fair and expeditious trials.

This chapter examines the law governing the presentation, admission, and evaluation of evidence in trials at the ICC, ICTY, ICTR, and SCSL. Section 9.1 reviews the guidelines established by the governing instruments and case law of these tribunals to cabin the broad discretion granted to chambers to admit evidence and weigh that evidence in the course of deliberations.

In the predominantly adversarial framework of international criminal law, the investigative phase of international criminal proceedings is largely driven by the prosecution. Although the regulatory structure of each of the international criminal tribunals accords the chambers varying measures of control during the investigative phase, investigative decisions and activities remain largely within the purview and discretion of the prosecution. That discretion, however, is also bounded by rules which explicitly recognise and protect the rights of suspects and other relevant actors during the investigative phase.

At the ICTY, ICTR, and SCSL, the chamber plays only a minor and relatively reactive role in the investigative phase. With no input into the initiation of investigations or regulatory control over the conduct of the investigation, the chamber's role is largely a facilitative one, issuing such orders in aid of the prosecution's work as may be necessary to secure state cooperation. The ICC pre-trial chamber, conversely, plays an authoritative role in certain aspects of the prosecution's investigative activities. Investigations initiated by the ICC Prosecutor proprio motu must be authorised by the pre-trial chamber before they can proceed. Additionally, the ICC Prosecutor's decisions not to initiate an investigation or not to prosecute following an investigation are both subject to confirmation by the pre-trial chamber in certain instances. Apart from this enlarged gatekeeping function, however, the ICC pre-trial chamber's role in the conduct of the investigation is largely similar to the other tribunals – facilitating without controlling.

Trial chambers at the international criminal tribunals must accompany their verdict with a written judgement setting forth the judges' reasoning. Due to many factors, judgements at the international criminal tribunals have been notoriously lengthy. These include, among others, the chamber's need to articulate factual findings in detail; the sprawling nature of the crime base in many cases; the accused's senior status and the consequent need to set forth analyses of large quantities of linkage evidence; the joinder of several accused into the same trial; and a tradition of lengthy judgements dating from the earliest ICTY and ICTR trials. If the chamber convicts the accused and decides to impose a penalty of imprisonment, the judges also must set forth the reasons supporting the sentence in the same or a subsequent written judgement. For reasons discussed below, sentencing decisions at the international criminal tribunals, though guided by a large and detailed body of jurisprudence, have been unpredictable and sentences have been often astonishingly lenient considering the extreme gravity of the crimes.

This chapter looks at judgement, sentences of imprisonment and other penalties, and post-conviction and post-acquittal procedures at the international criminal tribunals. Though occasional reference is made to internationalised tribunals other than the SCSL, the chapter's main focus is the ICTY, the ICTR, and the SCSL as the most influential internationalised tribunal; these three tribunals have handed down many judgements and sentences and have contributed the bulk of the law on judgement and sentencing.

The right to appeal a conviction in international criminal law, ostensibly founded on the jus cogens norm of a right to a fair trial, is embodied in several international instruments, including the statutes of the international criminal tribunals, and today likely forms part of customary international law. The right finds its origins in various sources, including international human rights law and the right to appeal a criminal conviction in national jurisdictions. The statutes of the international criminal tribunals also provide for a process known as ‘review’ at the ad hoc Tribunals and ‘revision’ at the ICC, in which a party may seek to have the decision that terminated the proceedings altered. For convenience, as we have done elsewhere in this book, we use the term ‘revision’ throughout the chapter to refer to this procedure.

Like many areas of international criminal procedure discussed in this volume, the appeal and revision processes at the international criminal tribunals reflect elements of both the common law and civil law traditions. On balance, however, they maintain more of a common law character, evidenced by the operation, at least at certain tribunals, of a system of binding precedent, and the requirement that an appeal be confined to the lower chamber's errors of law and fact and is not a de novo proceeding. As noted elsewhere in this volume, however, the unusual procedural structure of international criminal law – which, in the case of appeal and revision, varies somewhat across the tribunals – must be considered in its own right, and not through the lens of any national legal system or tradition, to be properly understood.