Ensuring fair and expeditious trials at the International Criminal Tribunal for the former Yugoslavia

Abstract

The debate as to the nature of the legal system established by the International Criminal Tribunal for the former Yugoslavia's Statute and Rules of Procedure and Evidence is ultimately unproductive and unnecessary; it is neither common law accusatorial nor civil law inquisitorial, nor even an amalga of both; it is sui generis. The key to the application of the Statute and the Rules is the use of the appropriate interpretative technique (which gives due weight to the four principles set out in Article 31 (1) of the Vienna Convention on the Law of Treaties). Although a Rule may have a common law or civil law origin, it is peculiar to the Tribunal, and though recourse may be had to its domestic origin, at the level of the Tribunal it must not be interpreted and applied having regard to the context in which the Tribunal is placed in the prosecution of persons responsible for serious violations of international humanitarian law, and in the light of the fundamental object and purpose of the Tribunal to ensure a fair and expeditious trial. The requirements for fair and expeditious trials are cumulative. A trial may proceed expeditiously, but not fairly. However, a trial cannot be fair if it is not expeditious. Fairness, therefore, remains the overarching requirement, of which an expeditious trial is but one element. After an examination of various techniques for expediting trials, the article highlights the generic and organic relationship between hearsay, cross-examination and expeditiousness which can be exploited in the search for time-saving procedures.