The Marriage of Common and Continental Law at the ICTY and its Progeny, Due Process Deficit

Abstract

At the time of its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was given an adversarial construct by virtue of its Statute. In the following year, the Tribunal’s judiciary created and adopted the Rules of Procedure and Evidence that would govern at the Tribunal. Widely acknowledged to be adversarial in nature, the Rules also implemented a continental evidentiary approach and provided for certain other continental features, including an active judiciary. To better understand the effect of combining features that derive from these two legal systems, this work surveys various aspects of the common law and continental legal traditions. It then assesses the way in which aspects of the two systems have been united at the ICTY. This review specifically focuses on the manner in which the amalgamation affects the procedural safeguards bestowed upon those accused at the ad hoc tribunals. It then highlights numerous instances wherein the Tribunal has abandoned time consuming adversarial features in favor of approaches found in the continental system and thoroughly analyzes the Tribunal’s modified pre-trial practices. This examination questions the Tribunal’s commitment to the principles espoused by it, particularly with regard to the issue of judicial impartiality, and expresses the concern that the protracted nature of due process has caused fairness to become a casualty in the Tribunal’s war against inefficiency.

Keywords: ICTY, fair trial, common law, continental law, adversarial, inquisitorial, comparative criminal procedure