PREPARATORY COMMISSION IS TOLD JUDGES OF INTERNATIONAL CRIMINAL COURT SHOULD HAVE ROLE IN FRAMING RULES OF EVIDENCE

Press Release
L/2930

PREPARATORY COMMISSION IS TOLD JUDGES OF INTERNATIONAL CRIMINAL COURT SHOULD HAVE ROLE IN FRAMING RULES OF EVIDENCE

Experience of Tribunal for Former Yugoslavia Is Cited; President Says Election of Judges Should Precede Adoption of Procedures

For an international criminal court to have credibility, its rules must address the actual circumstances and cases that it confronted on a daily basis, the President of the International Criminal Tribunal for the former Yugoslavia, Judge Gabrielle Kirk McDonald, said today.

She told the Preparatory Commission for the International Criminal Court this morning that one of the most important lessons the Tribunal for the former Yugoslavia had learned was on the role judges played in the rule-making process. To avoid repetition, and in a spirit of cooperation, the judges of the Tribunal were recommending that the Assembly of States Parties to the Statute of the International Criminal Court elect judges before considering and adopting rules of procedure and evidence.

The Preparatory Commission is drafting rules of procedure and evidence for the International Criminal Court, which will begin functioning upon ratification of its Statute by 60 States.

Judge McDonald said a properly functioning permanent international criminal court would be humanity's best chance yet to move out of its self- destructive cycle. Justice was a vindication, an historical right and a deterrent, she stated.

Philippe Kirsch (Canada), Chairman of the Preparatory Commission, also made a statement.

The Preparatory Commission will meet again next Monday (2 August) to continue the work of its second session.

Statements

Introducing Judge McDonald, Mr. KIRSCH said the experience of the two ad hoc tribunals (including the one on Rwanda) were extremely useful to the task of the Preparatory Commission. He said Judge McDonald had brought with her a report containing some comments and observations from the judges of the Tribunal for the former Yugoslavia on the development of the rules of procedure and evidence for the International Criminal Court. The report, based upon the experience of the judges in the development of the rules of procedure and evidence at the Tribunal, contained a number of practical points arising out of the implementation of those rules which might be of assistance to delegations.

GABRIELLE KIRK MCDONALD, President of the International Criminal Tribunal for the former Yugoslavia, said her six years experience on the Tribunal, including the last two as its President, had caused her to reflect on both the importance of international justice and how to achieve it. The establishment of the International Criminal Court was a recognition by the international community that, at long last, humanitarian norms must be enforced. However, that recognition was only a first step. The international community must work to ensure that the Court was more than "an empty promise or merely a paper tiger".

Noting the preparatory work under way on the drafting of the Court's rules of procedure and evidence, she said rules were important to the Court because they established the framework for conducting trial and appellate proceedings. They provided guidance to the parties as to what they could expect in those proceedings, and brought consistency to the Court's decisions and work. While the rules served several important functions, she said, it should be borne in mind that they could only be a framework. The rules could not, no matter how well crafted, foresee every courtroom situation. The rules should be a framework, not a straitjacket, she observed.

Judge McDonald noted that the International Criminal Court Statute had established rigorous requirements for the Court's judges, including standards of expertise in criminal and international law, as well as judicial experience. It could, therefore, be assumed that the Court would have experienced and capable judges, who would have the skills to address developments as they occurred or evolved. For the judges to effectively manage and direct proceedings, she said, the rules must allow them to address evolving situations and respond to issues that could not be anticipated during the drafting process.

She hoped the report of the judges of the Tribunal for the former Yugoslavia would assist the Preparatory Commission in its work. The Tribunal's judges had actively supported the creation of the International Criminal Court. Their unprecedented experience in handling trials and appeals of prosecutions of international crimes gave them a particularly informed perspective on the unique process of dispensing international criminal justice. That was especially true regarding the drafting and application of rules for such proceedings, she added. The Tribunal's judges had been responsible for the formulation and amendment of its rules of procedure and evidence, and had had to revise them in light of what actually happened in those proceedings.

She said the report addressed what the Tribunal judges saw to be important issues that the Preparatory Commission faced as it drafted the Court's proposed rules. The Tribunal had seen a rapid increase in its case load. The trials and appeals were generally very lengthy. That was partly as a result of the fact that the legal norms being applied required development, with many rulings of first impression and long judgements that developed the Tribunal's jurisprudence. To address those problems, the Tribunal's judges were continuously seeking approaches, and developing its rules to enable them to efficiently conduct each stage of the proceedings and build upon those rules, based on practical experiences not previously envisaged.

Another important aspect of the Tribunal's rules concerned the introduction of evidence. Several of its rules affirmatively provided for discretionary power of the Court. She said that while the judges were aware that the frequent amendment of the rules had been the subject of criticism in some quarters, they believed that those amendments had been justified. She also believed that the judges must use their experience constructively and that there was no shame in bringing their rules into line with the realities of the courtroom. If an international court was to have credibility, its rules must address the actual circumstances and cases that it confronted on a daily basis.

One of the most important lessons that had been learned at the Tribunal, she said, was on the roles judges played in the rule-making process. They had found that the actual experience in working in the courtrooms and conducting the proceedings was invaluable in crafting rules that were both workable and fair. Many of the Tribunal's rules had been incorporated into the International Criminal Court Statute, which was a recognition of the value of the Tribunal's experience. In their opinion, she said, the single most important recommendation that the Tribunal's judges could make was for the Assembly of States Parties to elect judges of the International Criminal Court before considering and adopting rules of procedure and evidence. That would allow for judicial participation in considering the proposed rules.

The International Criminal Court would need all the experience and wisdom it could obtain, and it would indeed be regrettable if one of its most vital resources -- its judges -- were left out of the critical process of adopting its rules. The Preparatory Commission should recommend to the Assembly of States Parties that judges be elected first, in order to allow their input into the rules. If that were not possible, she said, the Commission or the Assembly should consider establishing an advisory committee of judges, with experience in international criminal justice, to review the rules, and provide advice before the adoption of the rules.

Judge McDonald announced that she would leave the Tribunal next November. As the century came to a close, she said, there was, for the first time, realistic hope of a more just future. The last decade had seen the application of dormant humanitarian principles and laws in various forums. The International Criminal Court offered the opportunity to build on those disjointed enforcement efforts. A properly functioning permanent Court would be humanity's best chance yet to move out of its self-destructive cycle. Justice was a vindication, an historical right and a deterrent, she stated.

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