Concerning judges’ role, this has been strengthened as the ICTY, the ICTR and, to a lesser extent, the SCSL,520 increasingly incorporated inquisitorial
components. The ICTY, the ICTR and the SCSL Trial Chambers have the power to order the parties to present additional evidence and the ICTY and the ICTR can additionally summon witnesses.521 Also, a judge at any stage, and not only at
512 See infra Chapter III 2.2.2 and 3.2.2.
513 In particular, rules 16(a)(1)(C) and 16(b)(1)(A) of the United States Federal Rules of Criminal Procedure. See Orie (2002) 1469.
514 See respectively ICTY RPE, rules 66 (A); 66 (B), 67 (A) (i); 66 (A) (ii); 68, 68bis, and 69. ICTR RPE, rules 66 (A); 66 (B), 67; 66 (A) (ii); 68, 68 bis, and 69. SCSL RPE, rules 66 (A); 66 (B); 67, 68; and 69.
515 See ICTY RPE, rule 67(B). 516 Ibid., rules 86-88, 100 and 101(D). 517 Ibid., rule 62 (A) (iii)-(v).
518 Ibid., rule 111.
519 On judges’ broad discretion on this issue, see Kupreskić et al. (IT-95-16-A), Appeal Judgment, Appeals Chamber, 23 October 2001, para. 42 et seq.
520 Jørgesen (2009) 125.
521 ICTY RPE, rules 85(A)(v) and 98; ICTR RPE, rules 85(A)(v) and 98; SCSL RPE, rule 85. As for case law of the ICTY and the SCSL see respectively, e.g., Kupreskić et al. (IT-95-16-T) Witness Summons by the Chamber pursuant to Rule 98 of the Rules of Procedure and Evidence, Trial Chamber, 30 September 1998; Brima (SCSL-04-16-T), Judgment, Trial Chamber II, 20 June 2007, ‘Annex A: Procedural History’, para. 60.
87
the end of the examination by the parties, can put any question to the witness,522
which has often been applied by the Judges of these courts.523 The ICTY, the
ICTR and the SCSL Trial Chambers, prior to the beginning of the trial, are entitled with extensive powers to: i) call upon the Prosecutor to reduce the number of witnesses;524 ii) shorten the estimated length of examination-in-chief
of some witnesses;525 iii) determine the time available to the Prosecutor for
presenting evidence;526 iv) to invite the Prosecutor to reduce the number of
counts charged in the indictment ‘in the interest of a fair and expeditious trial’;527
and v) after commencement of the trial, to fix a number of crime or incidents representative of the crimes charged.528 The introduction of a Pre-Trial Judge
with a broad mandate, under the ICTY RPE,529 also increases judicial
intervention although this Judge has only coordinating but not investigating functions. The ICTR RPE and the SCSL RPE go a step further as at the pre-trial and the pre-defence conferences, the Prosecution and the defence may be ordered to provide the Trial Chamber with copies of written statements of witnesses they intend to call to testify.530 At the ICTY, this has sometimes
happened under rule 65 ter. Those provisions among others in principle give the judges more detailed information on the cases presented at trial and accordingly enable them to play a more active role. Although the ICTY Judges have progressively favored a proactive style of courtroom management in consideration of better ‘trial efficiency, trial fairness and the administration of justice trough trial’,531 the SCSL Judges did not adopt this extensive involvement
and rejected a proposal to give them a more proactive role.532 Trial Chambers
522 ICTY RPE, rule 85 (B); ICTR RPE, rule 85 (B); and SCSL RPE, rule 85 (B).
523 See also Nancy Combs, ‘Judicial Powers During Trial Proceedings’ in Sluiter et al. (2013) 689, 700-702.
524 ICTY RPE, rule 73 bis (D); ICTR RPE, rule 73 bis (D); and SCSL RPE, rule 73 bis (D).
525 ICTY RPE, rule 73 bis (B); ICTR RPE, rule 73 ter (C); and SCSL RPE, rule 73 ter (C). See, e.g., Galić (IT-98-29-AR73), Decision on Application by Prosecution for Leave to Appeal, Appeals Chamber, 14 December 2001, para. 7.
526 ICTY RPE, rule 73 ter (E).
527 ICTY RPE, rule 73 bis (D); ICTR RPE, rule 73 ter (D); and SCSL RPE, rule 73 ter (D).
528 ICTY RPE, rule 73 bis (D). See, e.g., Milutinović (IT-05-87-T), Decision on Application of Rule 73 bis, Trial Chamber, 11 July 2006.
529 Pre-Trial Judge’s broad mandate consists in taking ‘any necessary measure to prepare the case for a fair and expeditious trial’. ICTY RPE, rule 65 ter (B).
530 ICTR RPE, rule 73 bis and ter; SCSL RPE, rule 73 bis and ter.
531 See, e.g., Orić (IT-03-68-T), Order Concerning Guidelines on Evidence and the Conduct of Parties during Trial Proceedings, Trial Chamber, 21 October 2004, para. 1.
532 See Antonio Cassese, Report on the Special Court for Sierra Leone submitted by the Independent Expert Antonio Cassese, 12 December 2006, para. 110.
88
can exercise some control over the mode and order of witness interrogation.533
There is no jury at the ICTY, the ICTR and the SCSL and, indeed, the ICTY has remarked the importance of conduction of proceedings by professional judges instead.534
As for parties, prosecutor’s impartiality, and his/her obligation to establish the truth and present not only inculpatory but also exculpatory evidence have been explicitly recognized by the ICTY.535 The Prosecutor of the
ad hoc tribunals accordingly, as Judge Shahabuddeen concluded, ‘is not required to be neutral in the case; she is a party. But she is of course, not a partisan’.536 The
ICTY RPE allow the accused to make an opening statement after the parties’ statements ‘under the control of the Trial Chamber’ and without being cross- examined,537 which at least in theory makes the accused be transformed from a
mere ‘object’ of the trial (adversarial system) to an active party (inquisitorial system).538 Moreover, the ICTY has concluded that once a witness has taken the
oath, (s)he becomes a ‘witness of truth’ and ceases to be ‘a witness for either party’.539
As for evidence, as discussed later,540 it is possible to admit out of court,
written evidence instead of live, oral testimony. What should be detailed now is that after the pre-trial brief, the defence ‘shall’ (ICTY) or ‘may’ (ICTR) file its own brief and although the required contents of the brief differ between the ICTY and the ICTR, the brief should generally speaking provide the Trial
533 ICTY RPE, rule 90 (F); ICTR RPE, rule 90 (F); SCSL RPE, rule 90 (F).
534 Orić (IT-03-68-T), Order Concerning Guidelines on Evidence and the Conduct of Parties during Trial Proceedings, Trial Chamber, 21 October 2004, para. 11; Delalić et al. (IT-96-21-T), Decision on the Motion of the Prosecution for the Admissibility of Evidence, Trial Chamber, 19 January 1998, para. 20.
535 ‘[...] the Prosecutor of the Tribunal is not, or not only, a Party to adversarial proceedings but is an organ of the Tribunal [...] 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 [...]’. Kupreskić et al. (IT-95- 16-T), Decision on Communications between the Parties and their Witnesses, Trial Chamber, 21 September 1998.
536 Barayagwiza (ICTR-97-19-AR72), Decision (Prosecutor’s Request for Review of Reconsideration), Appeals Chamber, Separate Opinion of Judge Shahabuddeen, 31 March 2000, para. 68.
537 ICTY RPE, rule 84 bis (A).
538 Orie (2002) 1468; Kai Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or “Mixed”’ (2003) 3 International Criminal Law Review 1, 19.
539 Kupreskić et al. (IT-95-16-T), Decision on Communications between the Parties and their Witnesses, Trial Chamber, 21 September 1998, consideration 3 (iii).
89
Chamber with an idea of which aspects of the prosecution case the defence is likely to contest.541
Additional inquisitorial features include that the Trial Chamber shall at the same time determine the guilt and penalty to be imposed within the same procedure.542 Appeals are allowed not only for the convicted person but also for
the Prosecutor.543 The existence of a Pre-Trial Judge at the ICTY and his/her
authority to order parties to explain their position in pre-trial brief(s) is not yet comparable to a dossier. However, the powers under the ICTR and the SCSL RPE to order the parties to file the written statements of prospective witnesses have a very similar effect to the dossier, i.e., judges can read in advance witnesses’ early statements.544