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What are ‘Rules of Evidenceʼ?
The principles applied to the admission of the various kinds of evidence that may be brought before the court to prove the guilt of defendants under the charges brought against them.
What was unusual about the ICTYʼs Rules of Evidence?
They were greatly at variance with best international practice.
In what way?
Prosecution teams were allowed extraordinary latitude to introduce evidence that would not have been admissible in proper courts.
For example?
Many witnesses were allowed to give evidence anonymously by remote link. This put the defence at huge disadvantage because they had literally no basis to test the veracity of the witness. Even one ICTY Judge, Sir Ninian Stephen, felt compelled to protest publicly about this, saying “if the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable…the dangers inherent in such a situation are obvious”.
In what other ways were the Rules of Evidence deficient?
The prosecution was frequently allowed to introduce forensic, DNA and other evidence that had not been made available to the defence for evaluation by their own expert witnesses. This removed the basic right of defendants to be able to see and examine all the evidence ranged against them – perhaps the most fundamental right of international justice.
What was the cumulative effect?
Monumental injustice. In every ICTY case, trial judges reached verdicts on the basis of evidence that would not even have been heard in a proper court. This was then compounded on appeal when the appeal chamber, also made up entirely of ICTY judges, chose to see such evidence as proven.
Why was this tolerated?
The USA and the international community wanted the UN to have powers to intervene in the affairs of sovereign UN nations for humanitarian reasons. The real goal was further their own interests, not the good of all nations. Once the ICTY was illegally created, such international interventions steadily became commonplace.