The Procedure Before International Criminal Tribunals

Institute of Law Studies, Polish Academy of Sciences, Warsaw, Poland



This chapter shows an outline of the process in which the accusation model before the ICC was created as the result of a discussion between representatives of the continental and the common law systems. This discussion was aimed at finding how to build a criminal procedure model that would meet the major objectives set by the ICC, taking advantage of the experiences of various legal systems in order to prevent the impunity of perpetrators of the most severe crimes of international significance, simultaneously ensuring compensation for victims of crimes and a fair trial for the accused. This discussion started with the creation of the first international criminal tribunals and the adoption of the first set of procedural rules for the operation of international criminal (military) tribunals: in Nuremberg and Tokyo, and continued during the operation of the ad hoc tribunals. The finally adopted accusation model before the ICC is presented by using a set of basic components that were selected on the basis of the fact that they cover the framework of the entire course of proceedings before the ICC, and they are regulated in both the common law and the continental law systems in a manner that is both distinct and different. They were also selected in a way that demonstrates to the fullest extent why certain solutions are consistent with the common law approach while others are based on the continental tradition.

1.1 Preliminary Issues of Convergence of Criminal Justice Systems

The international procedural criminal law governs the role and powers of a prosecutor who is an accuser before international criminal tribunals in a manner that is a sui generis solution when compared to national legal orders. Through the adoption of criminal procedure components derived from various legal systems and traditions, a distinct model of accusation was established that was unrelated to the legal system of any one specific state. It is often presented as the result of a conflict between common law and civil law traditions, which is a paradigm used to explain the dynamics of international procedure.1 Procedural institutions were selected in such a way as to facilitate the optimum administration of international justice. In consequence, criminal procedure before international criminal tribunals has become an amalgam of procedural institutions functioning in various states. It has become a forum for bringing closer and converging legal traditions introducing a new quality to the area of legal proceedings.

The literature on international criminal procedure often focuses on the analysis of procedural institutions in terms of their continental and common law background. Traditionally, the continental law systems (which in the Anglo-Saxon doctrine are known as civil law or inquisitorial (non-adversarial) systems and are considered to have been derived from Roman law and the impact of Napoleon’s codes on Continental Europe) are juxtaposed with the common law systems (the law of the Anglo-Saxon states, also referred to as the adversarial system) based on the assumption that these are two distinct traditions. Such a dichotomy is purely a matter of convention. We could as well talk about Anglo-American and Roman-German legal orders,2 confessional states (e.g., Islamic) and secular states,3 North and South states4 or common law and statutory law states. A division based on a larger number of systems may also be adopted, in which case we could discuss, for example, the states of the common law area, the civil law and sui generis states5 or the systems of Christian, Islamic, Confucian and Buddhist states.6 We could also rely on the approach that analyses the types of authority and justice and, in consequence, distinguishes between two models of justice systems: hierarchical and coordinated officialdom or policy-implementing and conflict-solving justice types of procedure. The main difference between these types is characterised by the presence (or absence) of a hierarchical structure of authority, a strict hierarchical ordering and technical standards for decision-making.7 While all these features are characteristic for hierarchical officialdom, coordinated officialdom’s distinctive features comprise the absence of specialised officials, as justice is performed by lay people, who belong to a “single echelon of authority”. While the first type is associated with non-adversarial systems and the mode of procedure structures as an official inquiry, the second one responds to the adversarial mode of proceeding and takes its shape from a contest or a dispute.8

Even the above-mentioned divisions are sometimes considered to be too simple to capture systemic solutions. The notions of common law (adversarial) tradition and continental (inquisitorial) tradition seem to be more like labels than strict divisions as they cover certain features in shifting combinations.9 Much confusion is due to the fact that certain criteria remain uncertain for the inclusion of specific traits into a specific type of procedure.10 It is not possible to use them in order to describe legal traditions in a dichotomous way, as the main features of these two model procedures are present in legal systems with both common law and continental traditions. The most characteristic features of these models are often equally well known as ill-defined, as it is “not at all clear which sets of features are determinative of the ‘adversary’ as opposed to the ‘non-adversary’ system”.11 In both continental and Anglo-Saxon scholarship, the expressions “adversary” and “inquisitorial” are used in a variety of senses and certain features of these types of proceeding are polarised to excess for better comparativist effect.

However, because differentiation between the common law and continental law traditions is a common point of reference in the majority of research studies on international criminal law, in both the areas of national and international criminal procedures, these concepts will be used here in a comparative analysis of international criminal procedure. The dichotomy was already in use in the twelfth century, and nowadays it came to be used by comparativists on a broader scale.12 Although the dichotomy between these two legal traditions is actually disappearing, it is still the best point of reference and still constitutes a useful analytical device. This method will be adopted here, as the diversity of legal systems has to be somehow reduced to a “manageable set of patterns”.13 It will be assumed that the systems of criminal procedure in England, Wales and the United States of America belong to the common law tradition, whereas Poland and Germany represent continental legal systems. Comparative analysis on the basis of the defined legal systems is practical, as comparing “examples” of adversarial and inquisitorial systems enables to articulate concrete differences and concrete similarities between these systems and the ICC model of accusation and prevents analysing mere “patterns”.14

It is noteworthy that there is no consistency in calling a given method of resolving legal and criminal issues a “system” (by using the phrase “the continental law system”). The following phrases are alternatively used: type of proceeding,15 model,16 method17 and tradition18 or legal families.19 In the literature, the term “common law system” occurs most frequently, although the use of the notion “legal traditions”, rather than “legal systems”, to describe legal orders seems to be more accurate. The notion “tradition” is defined as “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the politics, about the proper organization and operation of a legal system, and about the way the law is or should be made, applied, studied, perfected and taught”.20 This notion seems to be the most appropriate in analysing procedural aspects of international criminal procedure. In turn, the concept of a “model” may be understood primarily as a “specimen” structure or procedure. The best definition of the term “model” in the theory of the criminal proceedings seems to be that of a “set of basic components of a system that allows differentiating it from other systems”.21 In this sense, this word will be used in the analysis of the accusation model presented in this monograph. The notion “model” is usually considered to be signifying a structure that is coherent and complete. Therefore, one could argue that the whole system of criminal procedure should be described to constitute a “model”, as “accusation” is just one of the functions of this procedure and cannot be treated as a whole. However, we cannot save this notion solely for the needs of describing a whole system of criminal procedure. It is often observed that models can serve as “convenient shorthand to indicate generalities rather than specifics, and they must therefore be seen only as an aid to, and as a substitute for, understanding”.22 While analysing a certain component of criminal trial (or a function performed by one of the actors in trial), “modelling” becomes useful in order to explain and show why certain elements tend to have certain features. Notwithstanding the shortcomings of the “modelling”, using a model description cannot be abandoned. Therefore, when speaking of the common law and continental “legal tradition”, it will be assumed that a “system” of law can operate in one state only and a “model” of procedure (that is, a set of basic components) is not the same as system and tradition.

International criminal procedure is often referred to as “cultural and legal hybrid”.23 It was created as the result of a discussion between representatives of the continental and the common law systems. This discussion was aimed at finding how to build—from scratch—a criminal procedure that would meet the major objectives set by the ICC, taking advantage of the experiences of various legal systems in order to prevent the impunity of perpetrators of the most severe crimes of international significance, simultaneously ensuring compensation for the victims and a fair trial for the accused. This discussion started with the creation of the first international military tribunals and the adoption of the first set of procedural rules for their operation: in Nuremberg and Tokyo. Usually, therefore, analysis of procedural models before the ICC starts with these.

1.2 Evolution of Procedure Before International Criminal Tribunals

1.2.1 International Military Tribunals: Establishing a Precedent

Regulation of the procedure before the International Military Tribunal (IMT) in Nuremberg was the first historical instance of establishing criminal procedure rules from scratch, independently of any national legal orders.24 The proceedings were conducted pursuant to the IMT Charter, which constituted an attachment to the London Agreement of August 8th 1945 for the Prosecution and Punishment of the Major War Criminals of the European Axis. Its provisions were complemented by Rules of Procedure.25 The provisions of the Charter and the Rules contain only an outline of solutions, leaving the resolution of ongoing procedural problems to judges and prosecutors. This model of procedure came to life, shaped by a variety of legal orders from the victorious countries, representing both the common law and the continental law systems. The states managed to achieve a compromise that resulted in, as we would call it today, convergence of legal traditions. Based on the continental tradition, it was decided that the trial would be led by a judge who would also issue a verdict, as the jury had not been introduced. In absentia trials were also allowed, and the accused had the right to provide explanations (they were not acting in the capacity of witnesses). In turn, a strictly adversarial trial framework was borrowed from the Anglo-Saxon system, in which the parties were to present the evidence and interrogate witnesses pursuant to the principles of cross-examination, composing the dialectic method of presentation of evidence.26

When a project of procedural rules for the Tribunal was presented by the American delegation, the representatives of France and the Soviet Union “shuddered”.27 Differences between common law systems and continental law systems led to misunderstandings and long negotiations. The earliest disagreements that occurred between the representatives of the two legal traditions concerned the adoption of particular procedural institutions. There was a particular backlash against the use of a purely adversarial model before an international criminal tribunal, as it was considered to turn a criminal trial into a “mere contest of skills”. Another problem occurred in relation to the limited content of the indictment and the related “classification” of incriminating evidence until the time of trial, which, according to representatives of continental systems, impaired the fairness of the trial. Even at that time, precedent-based procedure caused a lot of controversy—mainly due to the possibility of abuse of their broad prerogatives by judges and the unpredictability of the proceedings. Also, the suitability of adopting solutions characteristic of the purely adversarial model was generally challenged, as it was argued that neither the accused nor their defence counsels knew the system, which put them in an unfavourable position relative to the prosecutors, who came from a background of common law orders (two out of the four members of the Committee of Prosecutors).28 Finally, however, it was decided that the use of an adversarial framework for the Nuremberg trials was “pragmatic”.29

There is no doubt that the model employed in Nuremberg served as guidance for the further development of international criminal procedure. It was both “novel and experimental”.30 The model of criminal procedure that was finally adopted turned out to be unexpectedly effective, and the trials were completed within 10 months. They became a proof that it was possible to establish a sui generis criminal procedure model that would not duplicate the legal procedure of any of the states and that justice could be efficiently administered on an international forum, in this “most delicate kind of trial”.31 However, the political situation under which military tribunals operated was entirely different from the situation in which international criminal tribunals function today. Moreover, military tribunals were to adopt and apply “to the greatest possible extent expeditious and nontechnical procedure” (as in Article 19 of the Charter). As a result, the course of their operation was based mainly on decisions taken by judges in specific cases, as the charters of the tribunals were formulated in exceptionally general terms. It seems that the fact of establishing a precedent in the form of a tribunal issuing verdicts on the most serious international law crimes was, in itself, considered by the founders to be more important than establishing coherent and durable rules of procedure.32

1.2.2 ICTY and ICTR: “Living Laboratories”

The International Criminal Tribunal for the former Yugoslavia (ICTY)33 and the International Criminal Tribunal for Rwanda (ICTR), established on the basis of Security Council Resolution,34 are known as ad hoc tribunals—as their jurisdiction was restricted to a specific time and territorial framework. They were appointed by the Security Council as a means of restoring international peace and security pursuant to Chapter VII of the UN Charter.35 They were the first two modern international criminal tribunals administering international justice pursuant to a dedicated, independent set of procedural rules. Until the moment of establishing the ICC, they were the basic forum for the development of international criminal procedure. The procedural framework of the ad hoc tribunals is set out in their Statutes: the ICTY and ICTR Statutes, which comprise, respectively, 32 and 34 articles. These documents are, however, general and schematic, and as such they had to be complemented with the Rules of Procedure and Evidence (RPE).36 They constitute a specific source of procedural law. They were adopted by the judges of the Tribunal, who may also amend them at any time. The benefit of this solution is in achieving high flexibility of the rules. As a result of such development, the specific shape of procedural rules depends mainly on the resolutions of judges. This method of legislation raises two concerns. First, it allows the judges to play a dual role as a drafting organ and as an organ applying the rules—they act as quasi-legislators. In consequence, judges act both as entities establishing and interpreting the law. Second, it leaves the judges with almost unlimited discretion in framing the rules and principles of procedure—considering that the content of the Statue is the only limitation of their discretion and that this document is very laconic. On the other hand, flexibility of the Rules is an important asset in dealing with the many unprecedented situations and unpredicted legal issues confronting the tribunals; it makes it possible to adjust them to the ongoing tasks and demands of the tribunals.37

Before the ad hoc tribunals, international criminal procedure has been developed as a separate branch of law. In the frequently cited decision in the case of Prosecutor v. Tadić, the ICTY made a statement on the unique nature of the criminal procedure model adopted by this Tribunal:38 “As a body unique in international law, the International Tribunal has little precedent to guide it. The international criminal tribunals at Nuremberg and Tokyo both had only rudimentary rules of procedure. The rules of procedure at Nuremberg barely covered three and a half pages, with a total of 11 rules, and all procedural problems were resolved by individual decisions of the Tribunal. At Tokyo there were nine rules of procedure contained in its Charter and, again, all other matters were left to the case-by-case ruling of the Tribunal. (…) Another unique characteristic of the International Tribunal is its utilization of both common law and civil law aspects. Although the Statute adopts a largely common law approach to its proceedings, it deviates in several respects from the purely adversarial model (…) As such, the International Tribunal constitutes an innovative amalgam of these two systems” and “was able to mold its Rules and procedures to fit the task at hand”. Thus, the model does not follow the principles of only one of these systems. It has been assumed that despite the fact that the procedural institutions known from specific legal systems were used, the interpretation of a given provision should not be automatically applied: “A Rule may have a common law or civilian origin but the final product may be an amalgam of both common law and civilian elements, so as to render it sui generis”.39 Despite such systemic assumptions, it cannot be denied that in the initial period of operation of the ICTY and ICTR, the vision for the criminal procedure was derived from the common law tradition. This observation does not arise from the Statutes of these tribunals but from analysis of procedural solutions contained in the Rules of Procedure and Evidence, whose draft version was presented by the US delegation. It is claimed that judges received proposals regarding the model of procedure from a number of states and organisations, but the proposal that came from the United States was “by far most comprehensive and the one that proved to be particularly influential”.40 Moreover, the judges (unsurprisingly) were inclined to draw upon models of procedure that were the most readily available—the precedent of Nuremberg and Tokyo. The judges adjudicating in the initial period of the tribunals’ functioning also came from these legal systems. It was admitted that “it was not a secondary factor that a slight majority of the judges who drafted the Rules came from common law countries”.41 The approach of both the creators of the procedure, as well as those who applied it, had a direct impact on the main characteristics of the procedure before the ad hoc tribunals and led to the conclusion that it was a model of mainly “adversarial inclination”.42

The experience of the ad hoc tribunals shows the pursuit of an accusation model that would be most compatible with the profile of international criminal tribunals. The proceedings before the ICTY and ICTR became a forum for testing the effectiveness of procedural institutions derived from various legal systems. These tribunals became a “living laboratory”, examining the effectiveness of specific legal solutions in the environment of an international tribunal. Due to the flexibility of procedural rules, it was possible to seek solutions tailored to the specific tasks of the international criminal tribunal.

“The competition between the adversarial and inquisitorial systems in the early years of ICTY was a competition about which of these two techniques would better enable ICTY to achieve its goals. But it also was a competition between cultures”.43 Each of the components comprising the accusation model—the role of the prosecutor in a trial, his discretion in initiating an investigation, subjecting his right to bring the indictment before a court to judicial review, the prosecutor’s obligation to disclose evidence to the accused, the possibility of a consensual termination of criminal proceedings and the prosecutor’s tasks during the trial and the appeal proceedings—has become a field of conflict between two legal traditions during proceedings before the ad hoc tribunals. Each of these components has been altered and adapted in order to administer international justice, not always in a manner predicted—or even approved—by the tribunals’ founders. These alterations were often made in the course of a specific case, which provided a background for the adoption of a new solution. When confronted with a specific procedural problem, the solutions applied by the tribunals’ creators needed to be adapted, through proper judicial interpretation, to the requirements and rules of the international tribunal. Even the most basic principles of criminal procedure have been reviewed, as in the case of gradual departure from perceiving a prosecutor solely as an accuser in the criminal procedure and recognising him to be a “guardian of law” or as in the case of acknowledging the need for proactive participation by a judge in a trial and imposing on him an obligation to establish the material truth.