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9 - Evidence

Published online by Cambridge University Press:  05 August 2011

Gideon Boas
Monash University, Victoria
James L. Bischoff
U.S. Department of State
Natalie L. Reid
Debevoise & Plimpton LLP, New York
B. Don Taylor III
ICTY, The Hague, The Netherlands
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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.

International Criminal Law Practitioner Library
International Criminal Procedure
, pp. 335 - 374
Publisher: Cambridge University Press
Print publication year: 2011

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Boas, Gideon, ‘Admissibility of Evidence Under the Rules of Procedure and Evidence of the ICTY: Development of the “Flexibility Principle”’, in Richard May et al. (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (2001), p. 263Google Scholar
May, Richard and Wierda, Marieke, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, (1999) 37 Columbia Journal of Transnational Law725, 727Google Scholar
Kwon, O-Gon, ‘The Challenge of An International Criminal Trial as Seen from the Bench’, (2007) 5 Journal of International Criminal Justice360, 363–364CrossRefGoogle Scholar
Boas, Gideon, Bischoff, James L., and Reid, Natalie L., Forms of Responsibility in International Criminal Law (2007) (‘Boas, Bischoff, and Reid, Forms of Responsibility’), pp. 247–252
Broun, Kenneth al., McCormick on Evidence, Vol. II (6th edn 2006) (‘McCormick’) § 246
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. 294
Fitzgerald, Kate, ‘Problems of Prosecution and Adjudication of Rape and Other Sexual Assaults Under International Law’, (1997) 8 European Journal of International Law638, 639CrossRefGoogle Scholar
Piragoff, Donald K., ‘Evidence’, in Lee, Roy S. (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 355Google Scholar
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Zahar, Alexander, ‘International Court and Private Citizen’, (2009) 12 New Criminal Law Review569, 570–572Google Scholar
Thanki, Bankim, The Law of Privilege (2006), p. 34

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