Foreword

Abbreviations

Chapter I. Indictment

INTRODUCTION

Applicability to the proceedings in the ICC

STATEMENT OF THE FACTS IN THE INDICTMENT

ECHR Jurisprudence

General Requirements

Material Facts

Generally

Material facts and evidence

Material Facts Related to the Nature of the Criminal Responsibility of the Accused

Generally

Pleading relevant acts and conducts

Materiality of the facts in a case based on personal responsibility

Pleading Joint Criminal Enterprise

Materiality of the facts in a case based on superior responsibility

Material Facts Related to State of Mind (mens rea)

Legal Prerequisites as Material Facts

Additional Facts in the Indictment

CHARGES IN THE INDICTMENT

Counts

General Offence Charging

Persecution

Other inhumane acts

Cumulative and Alternative Charging

Cumulative charging

Alternative charging

PARTICULARS IN THE INDICTMENT

General Provisions

Particulars Related to the Nature of the Criminal Responsibility of the Accused

Other Particulars

Particulars related to victims

Particulars related to physical perpetrators and subordinates

Particulars related to co-conspirators

Particularity of other information

Schedules to the indictment

Use of Some Terms in the Indictment

ADDITIONAL PARTICULARS REGARDING THE OFFENCES CHARGED

PROSECUTION PRE-TRIAL BRIEF

CONFIRMATION AND AMENDMENT OF THE INDICTMENT

Division of Junctions between the Con? rming Judge and the Trial Chamber

Con? rmation of the Indictment, a Prima Facie Case

Amendment of the Indictment

Generally

"Interest of justice"

Withdrawal of charges

Judicial discretion

Factors to be considered by the Trial Chamber

Prejudice to the accused

Undue delay

Timing

"Prima facie" standard of proof for amendment, ICTY

Supporting material

Standard of proof for amendment, ICTR and SCSL

Challenges to the Form of the Amended Indictment

"New charges"

Procedural consequences on the new charges

JOINDER OF ACCUSED

Generally

"Same transaction"

Trial Chamber's Discretion and Relevant Factors

Generally

Judicial economy

Avoiding serious prejudice to the accused

Conflict of interests

Minimising hardship to witnesses

Consistency in evaluation of evidence, verdicts and sentences

CURING DEFECTIVE INDICTMENT

Generally

Prejudicial effect of a defective indictment

Remedies

Appeals Chamber's role

Assessment of whether the indictment has been cured

Chapter II. Disclosure by the Prosecutor

INTRODUCTION

Some specific features in the ICC proceedings

DISCLOSURE OF THE SUPPORTING MATERIAL AND STATEMENTS OF THE ACCUSED

Supporting Material

Disclosure by the Prosecutor of the material supporting new charges in the amended indictment

Prior Statements of the Accused

DISCLOSURE RELATING TO PROSECUTION WITNESSES

Generally

Meaning and Forms of Witness Statements

Generally

Interview notes, will-say statements and notes taken during proo? ng sessions

Disclosure of the Identity of Witnesses

Generally

Delayed disclosure and non-disclosure of witnesses' identity

Disclosure of the material protected in prior proceedings

Non-disclosure under Rules 53 and 69

DISCLOSURE RELATING TO EXPERT WITNESSES

DISCLOSURE AND INSPECTION OF OTHER MATERIAL

Inspection of Documents and Objects Material to the Preparation of the Defence

Generally

"Material to the defence"

Domestic judicial records of Prosecution witnesses and evidence of a pattern of conduct

Disclosure of Exculpatory Material

Prosecution Obligation to Disclose Exculpatory Material

Generally

"Essential obligation"

Determination whether evidence is exculpatory

Disclosure

Positive and continuing obligation

Office of the Prosecutor and Prosecution Teams' Obligations

Types of Material Subject to Disclosure

Generally

Testimony in other cases

LATE DISCLOSE

SANCTIONS AND REMEDIES FOR VIOLATION OF DISCLOSURE OBLIGATION

Generally

Breach of Rule 68

A Defence Request Based on Rule 68

MATTERS NOT SUBJECT TO DISCLOSURE

Information Provided on a Confidential Basis

ECHR jurisprudence

Generally

Internal Documents

LANGUAGE OF THE DISCLOSED MATERIAL

Generally

Exculpatory Material

Disclosure in the Language of the Accused in Audio Format

OTHER MATTERS RELATED TO DISCLOSURE

Disclosure in Electronic Format

Generally

Disclosure of exculpatory material

Disclosure on Appeal

Other Relevant Matters

Chapter III. Defence Access to Protected Material

ACCESS TO PROTECTED MATERIAL IN ANOTHER CASE

Generally

Access to Inter Partes Confidential Material

Generally

Access to confidential pleadings and decisions in another case

Protective measures

Other relevant matters

Access to Ex Parte, Confidential, and "Sensitive Witness" Material

Chapter IV. Disclosure by the Defence

Disclosure of Defence Witness Statements

Defence Witness Summaries

Disclosure of the Identity of Defence Witnesses

Other Information Related to Defence Witnesses

Defence of Alibi

Other Defence Disclosure

Defence Pre-Trial Brief

Chapter V. Disclosure in the ICC Proceedings

DISCLOSURE PRIOR TO THE CONFIRMATION HEARING

Generally

Disclosure of Exculpatory Information

Restrictions

Chapter VI. Variation of the Lists of Witnesses and Exhibits

Generally

Witnesses

Exhibits

Relevant Factors

Other Relevant Matters

Chapter VII. Binding Orders and Subpoenas

INTRODUCTION

BINDING ORDERS TO STATES AND INTERNATIONAL ORGANISATIONS

Binding Orders to States

States' obligation to cooperate

Binding orders to States generally

Protection of State interests

Orders under Rule 54 bis and Rule 54

Binding Orders to International Organisations

Binding Orders to State Officials

Request for an Order

Generally

Requirements to requests

SUBPOENAS TO INDIVIDUALS

Generally

Determining Whether to Issue a Subpoena

Chamber's Discretion

Relevant Factors

Request for a Subpoena

Role of National Authorities in Execution of Tribunal Orders

Subpoenas to Opposing Party's Witnesses

Subpoenas to State Officials

Subpoenas to other Individuals

War correspondents

UN staff

CONTACTING WITNESSES OF THE OTHER PARTY

Generally

Prosecution Contacting Defence Witnesses

Defence Contacting Prosecution Witnesses

SEEKING ASSISTANCE FROM STATES AND INTERNATIONAL ORGANISATIONS (SCSL)

Chapter VIII. Protection of Victims and Witnesses

GENERALLY

BALANCE BETWEEN RIGHTS OF THE ACCUSED AND PROTECTION OF WITNESSES

JUDICIAL DISCRETION

A "GENUINE FEAR"

PROTECTIVE MEASURES BASED ON WITNESSES' LOCATION

WITNESS ANONYMITY

ECHR Jurisprudence

Generally

PROTECTION OF SOME CATEGORIES OF WITNESSES

OTHER RELEVANT MATTERS

Chapter IX. Legal Assistance of Counsel

INTRODUCTION

RIGHT OF ACCUSED TO CHOOSE A COUNSEL

ECHR Jurisprudence

Generally

Indigent Accused

Legal aid

Assignment of co-counsel

Conflict of Interest

REVIEW OF THE DECISIONS CONCERNING ASSIGNMENT OF COUNSEL

Generally

Trial Chamber's Power to Review Registrar's Decisions

Appeals Chamber's Power to Review President's Decisions

President's Power to Review Registrar's Decisions

RIGHT TO SELF-REPRESENTATION

Generally

Judicial Discretion

Waiver of the Right to Counsel during a Custodial Questioning

ASSIGNMENT OF COUNSEL AGAINST THE WISHES OF THE ACCUSED

Imposition of Counsel

Generally

Accused's refusal to cooperate with the counsel and withdrawal of assigned counsel

Potential disruption to proceedings

The role of the represented accused in the proceedings

Legal Associates and Amicus Curiae

Chapter X. Plea Agreements

INTRODUCTION

GENERALLY

TRIAL CHAMBER'S DISCRETION

Chapter XI. Trial Proceedings

INTRODUCTION

PRINCIPLE OF EQUALITY OF ARMS, FAIR TRIAL

ECHR Jurisprudence

Fair Trial

Equality of Arms

Equality of Time

Specific Role of the Prosecutor

JUDICIAL IMPARTIALITY

ECHR Jurisprudence

Generally

Principles of Application of the Impartiality Requirement

Presumption of Impartiality

Some Specific Circumstances

REASONABLENESS OF THE LENGTH OF THE PROCEEDINGS

ECHR Jurisprudence

Generally

Relevant Factors

ACCUSED'S RIGHT TO BE TRIED IN HIS PRESENCE

ECHR Jurisprudence

Generally

A Trial in the Absence of the Accused

Accused's Participation in the Proceedings via Video-Link

PUBLIC HEARING AND CLOSED SESSIONS

ECHR Jurisprudence

Generally

Public and Ex Parte Filings

Closed Sessions

Protection of Witnesses

Protection of the Interests of Justice

Protection of confidential information

Disclosure of Protected Information in Violation of a Chamber's Order

WORKING LANGUAGES

ECHR Jurisprudence

Generally

REMEDIES FOR VIOLATIONS OF THE ACCUSED'S RIGHTS

ECHR Jurisprudence

Generally

Reduction of the Sentence

Setting Aside Jurisdiction

Compensation for an Acquitted Person

ORDER OF PRESENTATION OF EVIDENCE GENERALLY

EXAMINATION IN CHIEF

Using a Prior Witness Statement

Refreshing the witness' memory

Use of prior consistent statements

CROSS-EXAMINATION

ECHR jurisprudence

Generally

Scope of the cross-examination

Cross-examination in multi-accused trials

Other relevant matters

Testing the Witness' Credibility

Use of Prior Statements in Cross-Examination

Use of prior statements of a witness

Hostile witness

Use of prior statements of the accused

Putting to the Witness the Nature of the Case of the Cross-Examining Party

Admissibility of the Material Presented During Cross-Examination

Questions Relating to Pre-Testimony Meetings

RE-EXAMINATION

Generally

Recalling Witnesses for Re-Examination

ACCUSED TESTIMONY

Generally

Timing of the Accused Testimony

Accused's Communications During the Testimony

EXAMINATION OF A WITNESS IN POSSESSION OF CONFIDENTIAL INFORMATION

PRESENTATION OF EXHIBITS

Generally

Advance Disclosure of the Documentary Evidence

REBUTTAL AND REOPENING THE PROSECUTION CASE

Generally

Rebuttal and Rejoinder

Rebuttal

Rejoinder

Re-Opening the Case

Generally

A two-step procedure

Reasonable diligence

Probative value of the proposed evidence

The Chamber's discretion

EVIDENCE RELEVANT TO SENTENCING

VIDEO-LINK TESTIMONY AND DEPOSITION EVIDENCE

Testimony via Video-Conference Link

Deposition Evidence

ON-SITE VISIT

TRIAL CHAMBER'S CONTROL OVER THE PRESENTATION OF EVIDENCE

Generally

Trial Chamber's Discretion

Chamber's Authority to set Constraints on the Prosecution Case

Generally

Authority to limit the length of time and number of witnesses

Directing the Prosecutor to reduce the scope of the indictment

Pre-trial Delivery of Witness Statements and Other Documents and Information to the Trial Chamber

Chamber's Proprio Motu Order for Production Additional Evidence

Generally

Questioning witnesses by the judges

Witnesses summoned by Chamber proprio motu

OTHER RELEVANT MATTERS

"Proofing" Witnesses

Communication with a Witness after Commencement of his or her Testimony

Chapter XII. Admissibility of Evidence

INTRODUCTION

GENERAL PROVISIONS

"A Unique Mixture of Common Law and Civil Law Rules"

"Chambers shall not be Bound by National Rules of Evidence"

Application of National Rules of Evidence

"Extensive Admissibility" of Evidence

Discretion of the Trial Chamber

Pre-trial Chambers of the ad hoc Tribunals' role

Exclusion of Certain Evidence

Generally

Relevance and Probative Value

Reliability

Generally

Indicia of reliability

Hearsay evidence

DOCUMENTARY EVIDENCE AND INTERCEPTS

Documentary Evidence

Generally

The "best evidence" rule

Relevance and probative value

Reliability

Authenticity

Language of the exhibits

Other relevant matters

Documents of common knowledge

Rule 92 bis of the SCSL Rules

Intercepts

WITNESS STATEMENTS AND SUMMARIES

Generally

Categories of witness statements and summaries

Admissibility of the Witness' Prior Written Statements

Generally

Reliability of the statement

Testimony with incomplete cross-examination

Prior statement of the accused

Prior statement of the witness

Admissibility of Written Statements and Transcripts in Lieu of Oral Testimony

Generally

Discretion of the Trial Chamber

The acts and conduct of the accused

Acts and conduct of subordinates

The relevant factors

Statement of an unavailable person

Transcripts

Appearance for cross-examination

Admissibility of Witness Statements under 92 ter (Rule 89 (F)) of the ICTY Rules

Generally

Relationship between Rules 92 bis and 89 of the ICTY Rules

Admissibility of Summarised Material

Admissibility of Testimony Disclosed in Will-Say Statements

Summaries of Witness Statements at the Con? rmation Hearing in the ICC

Generally

Use of summaries as a protective measure

EXPERT REPORTS

Quali? cations of an Expert

Impartiality of an Expert

Expert's Evidence

Generally

Expert's testimony

Expert's report

Cross-examination of the expert

Difference between Rules 94 bis and 92 bis of the ICTY Rules

FACTS ADMISSIBLE FOR JUDICIAL NOTICE AND AGREED FACTS

Judicial Notice

Generally

Applicability to appeal proceedings

Facts of Common Knowledge

Generally

Definition

Some specific types of the facts

Reasonably indisputable

Adjudicated Facts or Documentary Evidence from Other Proceedings

Generally

The legal effect of judicially noticing an adjudicated fact

Presumption of innocence

Conditions for admissibility of adjudicated facts

Chamber's discretion

Interests of justice

A request for judicial notice

Legal conclusions

Documentary evidence

Difference Between Judicial Notice of Facts of Common Knowledge and that of Adjudicated Facts

Agreed Facts

EVIDENCE IN REBUTTAL AND REJOINDER

Rebuttal and Reopening the Case

Generally

Rebuttal material before the Appeals Chamber

Fresh evidence

Rejoinder Evidence

EVIDENCE OF THE MATERIAL FACTS NOT PLEADED IN THE INDICTMENT

SOME OTHER TYPES OF EVIDENCE

Tu Quoque Evidence

Other Types of Evidence

VOIR DIRE PROCEDURE

Chapter XIII. Victims' Participation in the Proceedings (ICC)

VICTIMS' PARTICIPATION IN THE PROCEEDINGS AT THE INVESTIGATION STAGE

Generally

The Modalities of Participation at the Investigation Stage

Participation in Appeal

Chapter XIV. Judgments and Decisions

ECHR Jurisprudence

General Requirements

Judgment

Reasoned opinion

Other requirements

Sentencing

Generally

Guilty plea

Cooperation with the Prosecution

Chapter XV. Motions for Judgment of Acquittal

INTRODUCTION

GENERALLY

THE APPLICABLE TEST

Generally

Sufficiency of Evidence

"Could" Convict

Chapter XVI. Appellate and Review Proceedings

CERTIFICATION OF INTERLOCUTORY APPEALS

Generally

ICTY and ICTR

SCSL

Requirements under ICTY, ICTR, and ICC Law

Two cumulative conditions

Chamber's discretion

Request for certification

Requirements under SCSL Law

Generally

"Exceptional circumstances"

Application to Some Rulings

Admissibility of evidence

Judgment of acquittal under Rule 98 bis

Other rulings

ADDITIONAL EVIDENCE ON APPEAL

General Provisions

Tactical Decisions

Applicability to Interlocutory Appeals

Additional Evidence Bolstering Challenged Trial Chamber's Finding

Requirements in General

Admissibility if the Evidence was not Available at Trial

"Due diligence"

Admissibility if the Evidence was Available at Trial

"Gross negligence" as an exception

STATE REQUEST FOR REVIEW

Generally

Types of the Decisions Subject to Review

REVIEW OF THE TRIAL CHAMBERS' DISCRETIONARY DECISIONS

Generally

Types of Discretionary Decisions

REVIEW PROCEEDINGS

ECHR Jurisprudence

Generally

The Types of Decisions Subject to Review

A New Fact

Difference between Additional Evidence on Appeal and New Facts in the Review Proceedings

Chapter XVII. Arrest, Detention, and Provisional Release

ECHR Jurisprudence

ARREST AND DETENTION

Generally

Sovereignty of a State

A Writ of Habeas Corpus

Provisional Detention of Suspects

Duration of Detention

PROVISIONAL RELEASE GENERALLY

Factors that are Specific to the Functioning of the Tribunal

General Principles

An Application for Provisional Release can be Brought at any Time

Generally

Provisional release after commencement of trial

Provisional release of convicted persons pending an appeal

Removal of the "Exceptional Circumstances" Requirement from the Rules

Burden of Proof

Accused's burden

Prosecution's burden

Two Express Pre-Conditions

Trial Chamber's Discretion

Generally

Standard of review by the Appeals Chamber

PROVISIONAL RELEASE, THE RELEVANT FACTORS

Generally

Seriousness of the Charges

Government's Guarantees

Generally

The reliability of a guarantee

Prior position of the accused in the hierarchy

Accused's Cooperation with the Prosecution

Circumstances of Surrender

The Threat Posed to Victims and Witnesses

Other Factors

Some Specific Circumstances

TEMPORARY PROVISIONAL RELEASE AND MODIFICATION OF THE TERMS OF PROVISIONAL RELEASE

Temporary Provisional Release on Medical and Compassionate Grounds

Some Relevant Matters

PROVISIONAL RELEASE, SOME PROCEDURAL MATTERS

MODIFICATION OF THE CONDITIONS OF DETENTION

Generally

House Arrest

Chapter XVIII. Referral of the Indictment to Another Court

INTRODUCTION

GENERALLY

DISCRETION OF THE REFERRAL BENCH

RELEVANT FACTORS

Level of Responsibility of the Accused and Gravity of the Crimes

Generally

Level of responsibility

Gravity of crimes

Adequate Legal Framework

Generally

Applicable substantive law

Protective Measures

DETERMINATION OF THE STATE OF REFERRAL

MONITORING MECHANISM

OTHER RELEVANT MATTERS

Laws of Extradition

Other Matters

Chapter XIX. Other Procedural Matters

ONGOING INVESTIGATIONS BY THE PROSECUTOR

REPLY TO THE RESPONSE

RECONSIDERATION OF PREVIOUS DECISIONS

Statutory Provisions

Indictment

Generally

Con? rmation and Amendment of the Indictment

Joinder of Accused

Disclosure by the Prosecutor

Generally

Disclosure of the Identity of Witnesses

Disclosure of Exculpatory Material

Matters not Subject to Disclosure

Disclosure by the Defence

Variation of the Lists of Witnesses and Exhibits

Binding Orders and Subpoenas

Protection of Victims and Witnesses

Legal Assistance of Counsel

Plea Agreements

Presentation and Examination of Evidence

Generally

Principle of Equality of Arms, Fair Trial

Video-link Testimony and Deposition Evidence

Closed Session

Chamber's Proprio Motu Order for Production Additional Evidence

Admissibility of Evidence

Generally

Admissibility of Written Statements and Transcripts in Lieu of Oral Testimony

Expert Reports

Judicial Notice

Exclusion of Certain Evidence

Victims' Participation in the Proceedings (ICC)

Judgments and Decisions

Motions for Judgment of Acquittal

Appellate and Review Proceedings

Certification of Interlocutory Appeals

Additional Evidence on Appeal

State Request for Review

Review Proceedings

Arrest and Provisional Release

Arrest

Provisional Release

Referral of the Indictment to Another Court

Judicial Impartiality

Reasonableness of the Length of the Proceedings

Reply to the Response

Working Languages

Table of Cases of the International Courts

Form of the Indictment

Amendment of the Indictment

Joinder of Accused

Disclosure by the Prosecutor

Defence Disclosure

Disclosure in the ICC Proceedings

Variation of the List of Witnesses and Exhibits

Access to Protected Material in Another Case

Binding Orders and Subpoenas

Contacting Witnesses of the Other Party

Protection of Victims and Witnesses

Legal Assistance of Counsel

Plea Agreement

Trial Proceedings

Judicial Impartiality

Reasonableness of the Length of the Proceedings

Working Languages

Setting Constraints on the Presentation of the Case

On-Site Visit

Delivery of Witness Statements and Other Documents and Information to the Trial Chamber

Deposition and Video-Link

Public Hearing and Closed Sessions

Public and Ex Parte Filings

Admissibility of Evidence

Written Statement in Lieu of Oral Testimony

Expert Evidence

Judicial Notice and Agreed Facts

Victims' Participation in the Proceedings (ICC)

Judgments and Decisions

Motion for Judgment of Acquittal

Appellate and Review Proceedings

Certification of interlocutory appeals

Additional evidence on appeal

Review of the Trial Chambers' discretionary decisions

Review proceedings

State request for review

Arrest, Detention, and Provisional Release

Lawfulness of Arrest

Referral of the Indictment to Another Court

Other Procedural Matters

Reply to the response

Reconsideration of previous decisions

Table of Cases of the European Court of Human Rights

Index