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International Criminal Procedure – A Comparative Book Review

Published online by Cambridge University Press:  06 November 2014

MARKO DIVAC ÖBERG
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Extract

What a difference a good textbook would have made twenty years ago, when the first judges embarked upon the adventure of creating a new international criminal procedure. Of course, back then there was little to draw upon other than domestic criminal systems. Fast forward twenty years, and a series of international(ized) criminal tribunals and courts have created a rich and sprawling body of international criminal procedural law. So rich, in fact, that it threatens to overwhelm the practitioner or scholar struggling to make sure that he or she has not overlooked anything important. So the recent series of books devoted to the topic of international criminal procedure is welcome indeed. The present book review surveys and compares four of these volumes.

Type
REVIEW ESSAY
Information
Leiden Journal of International Law , Volume 27 , Issue 4 , December 2014 , pp. 935 - 945
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 While Boas et al. was recently published in paperback, the hardback version is slightly older than the other three books under review.

2 The Mechanism for International Criminal Tribunals was excluded because its Rules of Procedure and Evidence were adopted only after the bulk of the research was completed (p. 18).

3 C. J. M. Safferling, Towards an International Criminal Procedure (2001).

4 On this topic, see C. Schuon, International Criminal Procedure (2010), 44–6, 155; K. A. A. Khan et al., Principles of Evidence in International Criminal Justice (2010), 32.

5 De Hert et al. also includes issues of substantive law that are not covered by the present book review.

6 STL Statute, Art. 22.

7 The best authorities from a practitioner's point of view are usually the founding instruments of the court or tribunal in question as well as judicial precedents, especially from its own appeals chamber. See ICC Statute, Art. 21; ICJ Statute, Art. 38.

8 See Prosecutor v. Aleksovski, Judgement, Case No. IT-95–14/1-A, A.Ch., 24 March 2000, para. 113.

9 Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04–01/06, T.Ch. I, 14 March 2012, Separate Opinion of Judge Adrian Fulford, Separate and Dissenting Opinion of Judge Odio Benito. See also Safferling's interpretation of Art. 74 (5) of the ICC Statute (p. 525).

10 Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, Fofana - Decision on Appeal Against ‘Decision on Prosecution's Motion for Judicial Notice and Admission of Evidence’, Case No. SCSL-2004–14-AR73, A.Ch., 16 May 2005, Separate Opinion of Justice Robertson, para. 5.

11 See Cayley, A. T. and Orenstein, A., ‘Motion for Judgement of Acquittal in the Ad Hoc and Hybrid Tribunals – What Purpose If Any Does It Serve?’, (2010) 8 Journal of International Criminal Justice 575CrossRefGoogle Scholar. See further Prosecutor v. Karadžić, Case No. IT-95–5/18-T, T.Ch., 28 June 2012, pp. 28,764–28,770, 28,774 (‘the Chamber partially grants the accused's motion under Rule 98 bis of the Rules, enters a judgement of acquittal on Count 1 of the indictment, and dismisses the remainder of the motion’); Prosecutor v. Karadžić, Judgement, Case No. IT-95–5/18-AR98 bis.1, A.Ch., 11 July 2013, para. 117 (‘REVERSES the Trial Chamber's acquittal of Radovan Karadžić for genocide in the Municipalities under Count 1 of the Indictment; and REINSTATES the charges against Radovan Karadžić under Count 1 of the Indictment’).

12 ICTY RPE Art. 94(B); ICTR RPE Art. 94(B); SCSL RPE Art. 94(B); STL RPE Art. 160(B).

13 Compare with the intricate legal regime governing the admission of additional evidence on appeal that has been developed by the ad hoc Tribunals. See e.g. Prosecutor v. Šainović et al., Decision on Sreten Lukić's Second Motion to Admit Additional Evidence on Appeal, Case No. IT-05–87-A, A.Ch., 29 April 2010, paras 5–11. See also Prosecutor v. Kupreškić et al., Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, Case No. IT-95–16-A, A.Ch., 26 February 2001, para. 15 (‘the prohibition on a party from adducing evidence that was available to it at trial means that the party must put forward its best possible case at trial and cannot hold back evidence in reserve until the appeal.’).

14 See, e.g., Prosecutor v. Kupreškić et al., Appeal Judgement, Case No. IT-95–16-A, A.Ch., 23 October 2001, para. 155 et seq.

15 Consequently, a number of statements made in the book are outdated, for instance the assertion that the ICTY has never granted an application for revision (p. 452). See Prosecutor v. Šljivančanin, Review Judgement, Case No. IT-95-13/1-R.1, A.Ch., 8 December 2010, para. 37.

16 See for instance the conclusion that a trial chamber's power to reconsider its own previous decisions ‘cannot be considered to be a general principle as the situation is not yet clear at the ICC’ (p. 1,009).