International Criminal Law
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…[i]n the context of rules of procedure and evidence, the approach of the Statute of
this Tribunal is to lay down a framework or a structure, conceived in the broadest
terms, with due regard to the accused’s rights to a fair and public hearing. The Trial
Chamber, therefore, has the responsibility to ensure that the trial is fair and
expeditious and that the proceedings are conducted in accordance with the Rules,
with full respect for the procedural and substantive rights of the accused and also
for the protection of victims and witnesses.
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Thus, the importance of a fair trial is recognised and the Rules should be read in that
light. In order to determine whether this mixed system accurately matches the reality
of international criminal justice, it is important to review how these Rules are being
applied. The discussion is limited to issues of admissibility and weight of evidence
and the relationship between the two. It is beyond the scope of this chapter to provide
a full and comprehensive discussion on the interpretation of each Rule separately.
Thus, only the most important elements are highlighted. Cases where the defendant
pleaded guilty are left out of the discussion as, in such cases, the guilty plea is the
main basis for the conviction. The prosecution does not need to prove the case beyond
reasonable doubt independently of the guilty plea.
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The ICTY and ICTR approach will be discussed jointly as they do not significantly
differ. To the contrary, they have influenced one another, although most of the doctrine
has been developed at the ICTY rather than the ICTR. Where there is a difference, it
will be so stated. If not, it may be assumed that the principles discussed apply to
both tribunals even where reference is made to the case law of only one.
11.3 ADMISSIBILITY
In relation to admissibility of evidence, r 89 is particularly relevant. As already
mentioned, this Rule has a wide scope for evidence to be admitted.
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Indeed, as an
ICTY Chamber held: ‘[t]his Trial Chamber believes that it should not be hindered by
technical rules in its search for the truth, apart from those listed in Section 3 of the
Rules.’
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The Trial Chamber determined that not all categories of the proposed
evidence should be held admissible, highlighting that ‘[t]he purpose of the Rules is
to promote a fair and expeditious trial, and Trial Chambers must have the flexibility
to achieve this goal’.
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