Investigation and prosecution of large-scale crimes at the international level: The experience of the ICTY

Abstract

Although the prosecution of large-scale crimes at the international level shares some similarities to the prosecution of organized crime at the national level, there are a number of important differences that make the two areas hardly comparable. Two distinctive traits of international criminal proceedings stand out in this regard: (i) the lack of any enforcement agency that would allow prosecuting authorities to carry out investigations on the territory of an interested state without its assistance and the absence of a general power to carry out such arrests, which render state cooperation of prime importance and (ii) the fact that the procedural model of international criminal tribunals is mixed containing elements of accusatorial (common law) as well as inquisitorial (civil law) systems. As far as prosecutions are concerned, useful concepts and procedures adopted from both legal traditions can be found in the Statute, the Rules of Procedure and Evidence as well as in the approach of prosecutors, defence counsel and judges to the introduction of evidence and, more generally, to the manner in which proceedings are conducted. One of the main examples of this is the acceptance of proof of facts by means other than oral evidence as a result of the influence of the civil law tradition, which has progressively made its way in the procedural system of the International Criminal Tribunal for the former Yugoslavia (ICTY). Yet, on the other hand, some methods normally resorted to in national criminal prosecution may turn out to be useful at the international level, such as resorting to insider witnesses. Although known to domestic systems, such practice may have a particular significance in the context of the prosecution of international crimes. So have additional forms of criminal participation (such as the notion of joint criminal enterprise). Only a mixing of traditional and innovative investigative tools and the proper balance of the different legal cultures can ensure effective prosecution of international crimes. © 2006 Oxford University Press.