New York, 30 July 1999

Please find attached the full text of the remarks made by Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the former Yugoslavia, to the Preparatory Commission for the International Criminal Court.

"It is indeed a pleasure for me to address the second meeting of the Preparatory Commission for the International Criminal Court (ICC). I have served six years as a judge of the International Criminal Tribunal for the former Yugoslavia. That experience, both as Presiding Judge in the Tadic case and as President of the Tribunal for the last two years, has caused me to reflect on both the importance of international justice and how we achieve it. Thus, I am especially pleased to have this chance to share with you some thoughts on how the cause of international justice can be furthered through the ICC and to address some important practical issues that we have already faced in our work at the Tribunal.

The establishment of the International Criminal Court is recognition by the international community that, at long last, humanitarian norms must be enforced. However, this recognition is only a first step, and we must work together to ensure that the ICC is more than an empty promise or, as I said here two years ago, merely a paper tiger.

Now that the Statute is in place, you are turning to the equally important task of drafting the Rules of Procedure and Evidence. Rules are important to the Court because they establish the framework for conducting trial and appellate proceedings. They provide guidance to the parties as to what they can expect in those proceedings and bring consistency to the Court’s decisions and work. While the Rules serve several important functions, we must bear in mind that they can only be a framework; the Rules cannot, no matter how well crafted, foresee every courtroom situation. That is what Rules should be – a framework, not a straitjacket.

The ICC Statute has established rigorous requirements for the Court’s judges, including standards of expertise in criminal and international law, as well as judicial experience. You can, therefore, assume that the Court will have experienced and capable judges who will have the skills to address developments as they occur or evolve. My advice is: trust them, don’t tie their hands.

The judges are responsible for conducting the trials and the appeals that will be the work of the Court, and it is the judges who will control the proceedings. For the judges to effectively manage and direct the proceedings, the Rules must be sufficiently flexible to allow them to exercise discretion when necessary. They must allow the judges to address evolving situations and respond to issues that could not be anticipated during the drafting process.

Today, I am presenting a report of the judges of the International Criminal Tribunal for the former Yugoslavia in the hope that it will assist you in your work. The Tribunal’s judges have actively supported the creation of the ICC since the International Law Commission (ILC) submitted a draft Statute for the Court in 1994. Indeed, we submitted comments on the ILC’s draft back in 1994. Moreover, on behalf of the judges, I addressed the Preparatory Committee in 1997 and addressed the Rome Conference last summer. My fellow judges and I and have also participated in various fora related to the establishment of the ICC during the course of this historic process.

I believe that the unprecedented experience gained by our judges in handling trials and appeals of prosecutions of international crimes gives us a particularly informed perspective on the unique process of dispensing international criminal justice. This is especially true regarding the drafting and application of rules for such proceedings. As many of you know, the Tribunal’s judges have been responsible for the formulation and amendment of its Rules of Procedure and Evidence. We thus have extensive experience in drafting rules and then applying them in courtroom situations. In light of what has actually happened in those proceedings, we have, of course, had to revise our Rules as well. We thought that you might find our comments useful and are offering our report in a spirit of cooperation, with the hope that they will help to guide you in your difficult task.

Our report addresses what we see to be important issues that the Preparatory Commission faces as it drafts proposed Rules. The judges who worked on these comments are from a variety of backgrounds, legal systems and judicial experiences. Moreover, some have served in the Trial Chambers and some on the Appeals Chamber and some on both. This report represents a consensus of the participants’ rich diversity of experiences and perspectives.

At the Tribunal, we have seen a rapid increase in our caseload over the past several years. The trials and appeals that we are conducting are generally very lengthy. This is in part a result of the fact that the legal norms that are to be applied require development, with many rulings of first impression and long Judgements that develop the Tribunal’s jurisprudence. Moreover, the trials involve factually complex and difficult issues, requiring numerous witnesses as well as extensive documentary evidence. And yet the Tribunal’s Statute, like the ICC Statute, guarantees the accused the right to not only a fair trial but also to an expeditious trial. Expeditious trials are important not only for the accused, who is generally in detention, but also for other accused in detention awaiting trial.

To address these problems, the Tribunal’s judges are continuously seeking approaches, and developing our Rules, to enable us to efficiently conduct each stage of the proceedings, and to build upon these Rules based on practical experiences not previously envisaged. For example, we have adopted Rules which allow for Pre-Trial and Pre-Defence Conferences. These Rules provide that a Chamber may take a number of steps to ensure that the case is both ready for trial and that the issues have been narrowed prior to trial. Under these Rules, the Trial Chamber may request the parties to file pre-trial briefs, statements of disputed facts, lists of witnesses and exhibits and a summary of the facts on which each witness will testify. Moreover, a single pre-trial Judge can be given responsibility for pre-trial proceedings in a case, with the power to establish deadlines, coordinate communications, and perform other judicial functions that do not require participation by all judges in the Chamber. Thus, these important duties can be shared among the various judges of the Chamber. These Rules allow for practical but important steps to be taken which promote both judicial economy and efficiency.

With regard to the control of the trial itself, the judges have found that a recurring issue has been the number of witnesses called by the parties. For instance, in one case one of the parties proposes to call over 300 witnesses, which would have the effect of causing the proceedings to last for years. We have thus adopted a Rule which allows the Trial Chamber to reduce the number of witnesses if a party appears to be calling an excessive number of witnesses to prove the same fact, and it also allows us to reduce the estimated length of time required for each witness. Our Rules thus provide a means by which the trial may be conducted in a more expeditious manner.

Another important aspect of our Rules concerns the introduction of evidence. While some national systems provide strict rules regarding the admissibility of evidence, our view has been that an international court must principally rely on the discretion of the Chamber to resolve evidentiary issues. Several of our Rules, therefore, affirmatively provide for this discretionary power of the Court. For example, the Chamber may order either party to produce additional evidence. It may admit any relevant evidence deemed to have probative value. Regarding the admission of evidence, as in many national systems, we have now amended our Rules to allow for judges to take judicial notice of commonly known or adjudicated facts, and we may hear oral motions in lieu of written motions during trial proceedings.

The above examples are but a sampling of Rules we have adopted to ensure that trials are conducted as fairly and expeditiously as possible.

As many of you are aware, our Rules have been revised a number of times. While we judges are aware that the frequent amendment of the Rules has been the subject of criticism in some quarters, we believe these amendments have been justified. The Tribunal has no analogue, and we have profited from our experience. I, for one, believe that we must use our experience constructively and that there is no shame in bringing our Rules into line with the realities of the courtroom. If an international court is to have credibility, its Rules must address the actual circumstances and cases that it confronts on a daily basis.

One of the most important lessons that has been learned at the Tribunal is the role judges play in the rule-making process. We have found that the actual experience in working in the courtrooms and conducting the proceedings is invaluable in crafting Rules that are both workable and fair. Many of our Rules are already incorporated into the ICC Statute, which is a recognition of the value of our experience. To avoid reinventing the proverbial wheel and in the spirit of further cooperation and continuity, the judges hope to impart some collegial advice to this Preparatory Commission.

In our opinion, the single most important recommendation that the Tribunal’s judges can make is for the Assembly of States Parties to elect judges of the ICC before considering and adopting Rules of Procedure and Evidence. This would allow for judicial participation in considering the proposed Rules. Why do we say this is so important? The reason is simple. The judges are the ones who will have to interpret and apply these Rules in courtroom situations. In short, they will have to live with the Rules, and it is important that they have a role in crafting those Rules so that their experience will not be wasted. As I said earlier, trust the judges. The ICC will need all of the experience and wisdom it can obtain, and it would indeed be a shame if one of its most vital resources – its judges – were left out of the critical process of adopting its Rules. This would only increase the difficulties of an institution that we all know is being challenged before it even begins its work.

According to the Statute and the Final Act, the Assembly of States Parties is to elect the judges and adopt the Rules of Procedure and Evidence. In our view, there seems to be no requirement as to which should come first - the election of the judges or the adoption of the Rules. Therefore, for the reasons I have just discussed, our strong view is that the Preparatory Commission should recommend to the Assembly of States Parties that judges be elected first in order to allow their input into the Rules. If this is not possible, then the Commission or the Assembly should consider establishing an advisory committee of judges, with experience in international criminal justice, to review the Rules and provide appropriate advice prior to the adoption of the Rules.

I would also make a general comment about the adoption of amendments of the Rules. The ICC Statute provides that judges may make amendments provisionally, subject to approval by the Assembly of States Parties. While this provision represents recognition of the contributions that judges have to make to the Rules, it raises the question of the effect such provisional Rules would have on the legality of the proceedings adopted pursuant to such an amendment. This question is particularly pertinent if such a provisional amendment is subsequently rejected by the Assembly. I would, therefore, suggest that to address this potential anomaly that a mechanism be developed to ensure that such provisional amendments are dealt with quickly, thus avoiding the uncertainty which would result from delay. Consideration should also be given to providing an opportunity to the ICC’s judges to explain the reasons for their adoption of the provisional rule in question before the Assembly takes any decision in this regard.

I will be leaving the Tribunal in November. I will, however, continue to actively support the cause of international criminal justice – both the work of the ICTY and ICTR, as well as the Permanent International Criminal Court. You, as States’ representatives – delegates – to the Preparatory Commission for the International Criminal Court have a heavy responsibility as you continue to make preparations for the Court to function.

As we close this Century, there is for the first time realistic hope of a more just future. A Century stained with the sufferings of ceaseless war and atrocity is as much marked by our incomplete efforts to secure the foundations of an international society, one in which all peoples are equal and equally protected from abuse. The last decade has seen the application of dormant humanitarian principles and laws in various fora. The ICC offers us the opportunity to build on these disjointed enforcement efforts. A properly functioning permanent court will be humanity’s best chance yet to move out of its self-destructive cycle. Justice is a vindication, an historical right and a deterrent.

This potential can only be realized if the court is properly equipped. Political will is essential. It is also crucial, as the Tribunal’s experience in its early years demonstrates, that the institution is internally strong, equipped with appropriate and efficient procedures to enable it to fulfil its mandate as the circumstances dictate. Above all, the ICC can only succeed if it is fair and perceived to be fair. I urge you to keep this uppermost in your minds as you continue drafting its roadmap – the Rules of Procedure and Evidence.

Thank you. Copies of the judges’ report are available in the back of the room".