Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY
Journal of International Criminal Justice
The paper focuses on various areas in which there is tension between the adversarial and the inquisitorial systems in the application of the Statute and Rules governing International Criminal Tribunal for the Former Yugoslavia proceedings: (i) the admissibility of evidence in written form with regard to crimes committed not by the accused but by his subordinates (Rule 92bis (A)), or of a transcript of evidence given by a witness in other proceedings before the Tribunal (Rule 92bis (D)); (ii)
... 92bis (D)); (ii) the possibility of a judgment of acquittal at the end of the prosecution case (Rule 98bis); (iii) the Trial Chamber's power to summon witnesses on a defence submission of 'no case to answer'; (iv) the possibility for a party calling a witness to cross-examine him if he proves to be hostile; and (v) the right of a party to request an interview with a witness of the opposing party in preparation for trial. The author contends that in these areas, the most recent developments in the case law offer clear illustrations of the potential for a collision between the common-law and civil-law systems. He concludes that, if not properly resolved, tension between the two systems may lead to unfairness. Absent clear guidance from the Appeals Chamber, the best way of resolving conflicts is the elaboration of detailed Rules on the particular subject.