Abstract

Prosecuting perpetrators of mass atrocities in international tribunals gives rise to unique evidentiary challenges. The crimes prosecuted in these tribunals feature large-scale violence that frequently takes place over protracted periods of time in locations far from the courtrooms in which the crimes are ultimately prosecuted. Credible evidence can be hard to come by because recalcitrant states erect obstacles that impede prosecutors or defense counsel seeking to investigate the crimes, because witnesses fear retaliation for their testimony, and because considerable time typically elapses between the crimes and the trials. Given the unique nature of international criminal trials and the unique challenges they pose, it should come as no surprise that a unique system has developed to govern the treatment of evidence at the international tribunals. Although many discussions of international criminal evidence focus primarily on admissibility and consequently observe that the evidentiary schemes of international criminal tribunals follow the civil law model, evidentiary issues at the international tribunals cover far broader ground and include both civil law and common law features. Space constraints prevent me from presenting a thorough discussion of international criminal evidence as a whole, but I will endeavor here to touch upon the most prominent evidentiary issues that arise during the pre-trial, trial and post-trial phases of international criminal proceedings.