Volume 4, Issue 1 - Fairness and Evidence in War Crimes Trials

This article challenges the new international criminal tribunals to distinguish and differentiate their procedures from those of "show trials".

This article argues that the right to self-representation should be upheld in international criminal trials.

This article argues that instead of trying to blend procedures from common law and civil law procedures, international criminal tribunals should move in the direction of the civil law tradition.

The Iraqi High Tribunal (IHT) carried forward three unfortunate practices from previous war crimes tribunals. The IHT allowed hearsay evidence and the reading of ex parte affidavits as evidence, two of the most criticized practices of the Nuremberg Tribunal. The IHT also allowed the admission of testimony by anonymous witnesses, a legacy of the Yugoslavia Tribunal which has since been rejected by that same court. This article argues that the admission of such evidence by the IHT was improper and wholly unnecessary given the extensive documentary evidence in the case. The article concludes that the IHT and other tribunals should explicitly detail the evidence which was not relied upon in making major factual findings, particularly when dealing with unreliable evidence. Only through such explicit rejection can tribunals prove that a defendant can get a ``fair trial on the evidence."

This article examines the extent to which different national, international and hybrid courts have been able to ensure that accused persons obtain a fair trial.

This article argues that differences in the rules of evidence between international courts should, to the extent possible, be minimised in order to avoid discrepancies in their assessment of the same facts.

This article examines the problems that stem from cultural and linguistic differences when international courts make use of witness evidence and points to the need for courts to hear expert testimony on the language and culture of the place where the crime was committed.

This article points to the danger of drawing inferences in international criminal trials from state claims to withhold evidence on grounds of national security.