Comparing the Rules of Evidence Applicable Before the ICTY, ICTR and the ICC

The International Criminal Tribunal for the former Yugoslavia (ICTY), The International Criminal Tribunal for Rwanda ( ICTR) and The International Criminal Court (ICC) all have very similar rules of evidence, which are beginning to look like an international system of criminal evidentiary rules. All three courts adhere to a predominantly adversarial (i.e. common law) system of procedure, except in rules of evidence, where they combine common and civil law traits, using the best of both worlds. For example the Chambers in all courts exercise broad discretion to control evidentiary matters in a civil law tradition. Based on the experiences of the WWII Nuremberg and Tokyo trials, the three courts adopted a “non-technical” admission of evidence as found in civil law countries. All three courts may admit any evidence as long as it is relevant to the case and has probative value (i.e. going to proof of an issue). The evidence also has to be prima facie reliable and not prejudice a fair trial. A special exclusionary rule is made at all three courts for victims of sexual violence, introduction of evidence on consent is limited and controlled by the Chamber, and evidence on prior sexual conduct is outright forbidden. The ICC has gone the farthest to protect victims from being put at risk through trial proceedings, including disclosure of evidence. The ICTR and the ICC have the principle of live testimony of witnesses. Written testimony is allowed but as a subsidiary source. The ICTY has gone further than the aforementioned courts to admit written testimony in order to expedite trials, especially when the witness is not present at the Tribunal. Material witnesses should though always be heard directly. The pre-trial proceedings are intended to shape the parties case, especially that of the Prosecutor, beforehand. The ICTY/R require the Prosecutor to inter alia file pre-trial briefs, which are a detailed outline of his/her case, a summary of evidence and a detailed witness list. The ICTY/R Judges may reduce the number of witnesses for the parties, limit their time for presentation of evidence and with the ICTY the Chamber may even reduce the number of charges, which evidence may be introduced for. The ICC also has extensive powers to exercise control over the parties´ case, but the power is discretionary and it remains to be seen in practice how well this approach will do. The ICC has referenced some of the ICTY/R jurisprudence in its decisions, for example regarding the admissibility of evidence. As the ICC develops its jurisprudence, it will surely continue to learn from the practice of the ICTY/R with regards to common rules and profit from their experiences