Evidence in International Criminal Procedure : Confronting Legal Gaps and the Reconstruction of Disputed Events

Abstract: This study examines the difficulties in establishing a universal code of procedural law governing international criminal trials and fact-finding. It covers five procedural systems: the military tribunals of Nuremberg and Tokyo, the ad hoc tribunals for former Yugoslavia and Rwanda and the International Criminal Court. The basis for the comparison are specific procedural activities common to the five procedural systems, including evaluation, collection, disclosure, admissibility and presentation of evidence.Certain general principles of law are applicable to evidence. However, the judges tend to favour one type of legal system (either adversarial or inquisitorial) when they identify general principles of national law which run counter to the concept of this source of law. The practice of the modern two-tiered systems suggests that pre-trial and trial judges are bound or at least guided by decisions of the Appeals Chamber. In comparison with international law in general, international criminal procedure is thus a sui generis legal system as regards the status of legal precedents. The balance between crime control, fair trial, expeditious proceedings, state sovereignty, truth-seeking,  victims’ participation and witnesses and victims protection may vary. No abstract procedural model (either adversarial or inquisitorial) can be applied in its entirety to an existing procedural framework. Instead, the proceedings are mixed and in relation to a specific procedural activity one model may be more relevant as a tool of analysis than another. The concept of “robustness” is used to discuss quantity in addition to concepts that deal with quality, including “probative value” and “weight”. Finally, the method involving exclusion of every reasonable hypothesis of innocence is examined as one of several analytical steps that may contribute to the systematic evaluation of evidence.