
Contents
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I . Introduction I . Introduction
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II . The Rules of Procedure and Evidence of the International Criminal Court: General Framework II . The Rules of Procedure and Evidence of the International Criminal Court: General Framework
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III . The Adoption and Amendment of Rules of Procedure and Evidence according to the Rome Statute: The Rejection of the ‘Judge-legislator’ III . The Adoption and Amendment of Rules of Procedure and Evidence according to the Rome Statute: The Rejection of the ‘Judge-legislator’
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A . Loss or Significant Reduction of the Power-Limiting Function of the Rules of Procedure A . Loss or Significant Reduction of the Power-Limiting Function of the Rules of Procedure
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B . Reduced Legitimacy of Rules Enacted by Judges B . Reduced Legitimacy of Rules Enacted by Judges
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C . Difficulties of Determining the ‘Intention of the Legislator’ C . Difficulties of Determining the ‘Intention of the Legislator’
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D . Loss or Significant Reduction of the Possibilities of Effective Judicial Review D . Loss or Significant Reduction of the Possibilities of Effective Judicial Review
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IV . Preliminary Conclusions IV . Preliminary Conclusions
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V . An Overview of Some of the ICC Rules of Procedure and Evidence V . An Overview of Some of the ICC Rules of Procedure and Evidence
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VI . Conclusions VI . Conclusions
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28 The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility
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Published:July 2002
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Extract
. Introduction
The Preparatory Commission for the International Criminal Court finished its work on the ICC Draft Rules of Procedure and Evidence on 30 June 2000. The outcome is a set of Draft Rules that still need to be formally adopted by the Assembly of State Parties, once the Statute enters into force. These Rules constitute a significant development in the area of procedural law before international criminal tribunals, and reflect a perception of the international community as to the requirements for a fair and effective adjudication of criminal responsibility for crimes of international concern.
It is interesting to observe how the development and importance of rules of procedure and evidence has evolved in the context of international criminal law. Criminal proceedings in Nuremberg and Tokyo were governed by rudimentary rules (eleven rules in the former and nine in the latter), and relied heavily on case by case determinations of procedural issues.1 Further, those precedents have been severely questioned on the basis of the lack of predictability and potential for abuse of the adopted provisions.2 The first attempt to adopt a cohesive and comprehensive body of rules of procedure for international criminal trials was undertaken by the judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) when drafting the ICTY Rules of Procedure and Evidence. As one commentator has noted, the adopted Rules were carved from the adversarial common law tradition, for a rather prosaic reason, namely, the timely submission by the United States of a comprehensive set of proposed rules with a commentary at the time the ICTY Rules were to be drafted.3 As of 1 May 2002,4 the ICTY Rules have been amended twenty-three times, as a reaction to the numerous practical problems that the ICTY has encountered while performing its functions. The nature of the amendments further shows that following a particular national model of criminal adjudication in the context of international trials is limiting, and fails to provide an international tribunal with the necessary tools to effectively perform its function.5
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