the „adversarial“ procedure: a model superior to other

Sonderdrucke aus der Albert-Ludwigs-Universität Freiburg

ALBIN ESER The „adversarial“ procedure: a model superior to other trial systems in international criminal justice? Reflexions of a judge Originalbeitrag erschienen in: Thomas Kruessmann (Hrsg.): ICTY: towards a fair trial? Wien: NWV, 2008, S. 206-227+ 395-414

Albin ESER, Director Emeritus of the Max-PiancInstitute for Foreign and International Criminal Lävl,freiburg (Germany), Former Judge at the ICTY inThe Hague (The Netherlands)

The 'Adversarial" Procedure: A ModelSuperior to Other Trial Systems inInternational Criminal Justice?

Reflexions of a Judge

1. Preliminary Remark

After several decades of theoretical research in comparative criminal law,when finally having to apply it in practice as a Judge at the ICTY in TheHague, I had to learn that theory is one thing and practice another. This isparticularly true with regard to the outcome of different procedural models.In theory, I always had expected that 'various criminal procedures, even incase of considerable differences, in the end will all come down to the sameessential result: 'finding the accused guilty or not guilty. During myexperience at the ICTY, however, I had to realise more and more that thefinal result of a criminal proceeding may well be different depending on thebasic procedural model pursued: while according to the structure and rulesof one system the accused may be found guilty, in another system he maygo free, and vice versa. Of course, it will never be possible to prove myassumption of eventually different outcomes in a specific case as this wouldrequire trying the same case in a subsequent procedure — an exercise thatwould run counter to the double jeopardy principle of "ne bis in idem".Nevertheless, the "mixed structure" of the ICTY procedure, which, as willbe seen, allows different practices depending on the more common law ormore civil law background of the judges and parties in a given case, willprovide us with ample illustrative material on the advantages anddisadvantages of certain procedural models.

Since so far the "adversarial" system of the common law tradition is theprevailing model in international criminal justice, it appears worthwhile toask whether it is indeed superior to other procedural models, as is widelycontended. At least with regard to international criminal justice, I havegreat doubts, and feel urged to express them.

This contribution is an enlarged and updated English version of my Germancontribution on "Vorzugswürdigkeit des adversatorischen Prozeasystems inder internationalen Stratustiz? Reflexionen eines Richters", in: Heinz Muller-Dietz et al. (eds.), Festschrift far Heike Jung, 2007, pp. 167-187.

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2. Common Assumptions — Personal Concerns

When'ile'presentatives of Anglo-Saxon-American common law are to evaluatetheir basically party-driven rather than judge-led "adversarial" criminalprocedure, you may easily find it characterized as the "embodiment ofprocedural justice". 1 And even more, this appreciation likes to be expressednot without a challenging connotation of superiority of the "adversarial"over other procedural systems, as in particular the so-called "inquisitorial"mode1.2 Without such unbroken self-esteem it would hardly be possible tounderstand the truly missionary effort through which the procedural modelof common law has been globally proliferated as the seemingly onlyacceptable one.3 By the same token, without the perception of the commonlaw tradition as preferable to other models, it would hardly beunderstandable that the procedural practice at international criminal courts,as in particular observed by the ICTY and 1CTR, is predominantly affectedby adversarial structures and categories. 4

lf this characterisation appears tinged with some criticism against thisdevelopment, this may by no means be understood as if, conversely, acracking-up of an "inquisitorial" tradition were on my mind, not to mentionany sort of judicial "chauvinism". Indeed, let's even leave aside the questionwhether and to what extent the one or the other procedural system mayguarantee a higher degree of material justice and formal fairness on thelevel of domestic jurisdiction. The only question at stake here is whetherand to what 'extent on the level of international justice a predominantly

1 As was recently recalled by Gleil (2005) 374 in her review of a comparison ofprocedural systems edited by Antony Duffy/Lindsay Farmer/Sandra Marshall/Victor Tadros, The Trial on Trial. Volume 1: Truth and Due Process, 2004.However, as to the varying understanding of what may typically beconsidered "adversarial" see infra fn. 18, 28 and accompanying text.

2 For more details on the "adversarial" and "inquisitorial" criminal proceduresystems as the "two dominant models" cf. Harding (2004) 11. Common as theconfrontation of these two models may be, the increasing convergencesbetween them should not go unnoticed, as shown in the comparative crosscutby Perron (1995) 560; cf. also JOrgiField/Brants (1995) 41-56 and HOrnie(2005) 801-838. As to the degree to which these models are employed in theprocedural systems of international courts, see references infra 5.

3 When procedural reforms along the "adversarial" line are adopted by a nationallegislation on free will, as it may have been the case in Italy, this choice, inrespecting national sovereignty and democracy, may not be criticized fromthe outside, even though it seems worthwhile to mention that the Italian shiftto "adversariality" appears not to function as well as expected [cf. Amodio(1990)1. Frank criticism, however, must be allowed with regard to theintroduction of adversarial elements into traditionally different proceduralsystems by way of political pressure as it seems has been exerted byAmerican organisations upon post-socialist criminal law reforms; cf., e.g.,Schwarz/Degen (2005), esp. 458 s., 464, 472 ss. See also infra at 6 fn. 48and accompanying text.

4 For more details see infra in fn. 29s., while leaving open at this point to whatdegree the courts concerned are in fact bound by their statutes and rules ofprocedure and evidence to the "adversarial" practice. As to doubts in thisrespect cf. infra 6.

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adversarial procedure is truly preferable or whether it should at least beinterspersed with other structural elements, if not completely replaced byanother procedural model. This is of crucial importance since internationalCriminal justice typically has to deal with a more grievous kind and highercomplexity of crimes than is the case with everyday offences in domesticcriminal practice.

My deep concern about this question is motivated, not only bytheoretical-comparative interests, but much more by the political anxietythat the still young international criminal justice may get so lost that it willhardly reach its goal, if it should not even more or less fail. Thisuneasiness is not without reason. More than by critical voices whichaccompany the activity of the international criminal tribunals merely fromthe outside, I feel urged by my own experiences as a judge at the ICTY topoint to certain objectionable trends which might require some correction.

This concern does not lose importance through the fact that the practiceof the ad hoc Tribunals for Yugoslavia and Rwanda may no longer besusceptible to any basic amendment as the end of their life span isforeseeable. For even if insights gained from deficiencies in the structureand practice of the ad hoc Tribunals may come too late for reforming them,it will be all the more essential for those international courts which are stillin their infancy and, thus, less pre-programmed by certain traditions, to bewarned as early as possible against potential undesirable developments.

3. The Objectives of International Criminal Justice asCriteria for Success or Failure

Whether and to what extent criminal justice can finally be evaluated assuccessful, critically depends on the objectives it is tasked with and expectedto accomplish.5 As concerns the aims of the ICC, quite a few of them arepronounced in the Preamble of the Rome Statute, some of them in analmost emphatic manner. In contrast, the ICTY Statute refrains from anypronouncement in this regard. This, however, does not mean that the ICTYis not led by certain aims; for, although not explicitly formulated in itsStatute, the aims of the ICTY can be derived from resolutions of the U.N.Security Council and/or reports and other public statements of representativesof the Tribunal.6 In which way however developed and by whom finallyphrased, it appears appropriate to understand the "objectives" as they arepronounced on the homepage of the ICTY in its "General Information" as'the main goals of this court:

5 As, for instance, with regard to the ascertainment of truth suitably observedby Jung (2004) 149, the role and weight of searching for the' truth may turnout quite differently depending on the more or less far-reaching goal of acriminal proceeding.

6 Cf., in particular, the — more or less precisely phrased — reasoning in theResolutions of the U.N. Security Council and the Report of the SecretaryGeneral of 3 May 1993 (S/25704) as well as the regular Reports of thePresident of the icrre to the U.N. Security Council.

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— to bring to justice persons allegedly responsible for serious violations ofinternational humanitarian law;

— to render justice to the victims;— to deter further crimes;— to contribute to the restoration of peace by promoting reconciliation in

the former Yugoslavia7 .

These objectives can be understood both as a general mission of thistribunal on the whole and as a leitmotif for each single proceeding.Institutionally, the IC'TY is expected to contribute to the fight against theimpunity of international crimes as well as to work towards the satisfactionof the victims, the prevention of future crimes and the restoration of peaceby promoting reconciliation in the former Yugoslavia. A similar contributionis expected from the individual proceedings as well. Although a single trialtypically aims at determining the guilt or innocence of the defendant, itmust also be led by the further reaching goals of the judicial mission of theICTY. To what extent this is, in fact, observed by the everyday practice ofthe ICTY, is, of course, difficult to prove. Even though I would prefer theoptimistic option, I am afraid that a rather pessimistic version will comecloser to reality. According to impressions gained from trial observationsand exchanges of judicial experience, the usual participants in a criminalproceeding — both from the prosecution and the defence side as well asfrom the bench — seem to have a hard time freeing themselves from theirtraditional role that is fixed on and limited to the question of the accused'sguilt or innocence; within this narrow understanding of a criminalproceeding, there seems to be little openness to conceive the judges' andthe parties' role on the level of international criminal justice differently thanon the familiar domestic stage.

The statutes and procedural rules of the various international jurisdictionslikewise turn out to be informative in different ways with regard to the essentialmaxims to be followed in view of the aims to be accomplished. As concernsthe ICC, the Trial Chamber's competence to ascertain the truth by "order(ing)the production of evidence in addition to that already collected prior to thetrial or presented during the trial by the parties" is already pronounced in theRome Statute. 8 Contrary to this plain commitment to the search for truth, the1CTY Statute refrains from any reference to this maxim — unlike fairnessand expediency of the trial, which are both explicitly recognized. g Turning tothe ICTY RPE, however, one can find three maxims which — more or lesseasily noticeable — shall guide the proceeding: ascertainment of the truth l°

7 Homepage of the ICTY, General Information/Objectives. http://www.un.orgiicty/glance/-e/index.htm.

8 Art. 64 (6) (d) ICC Statute. A still open question is, however, whether this "exofficio power" of the Trial Chamber, as it is characterised by Bitty (1999)Art. 64 margin no. 23, is merely a privilege that still needs to be upgraded to ajudicial duty, the neglect of which may be challenged on appeal, as submittedby Kirsch (2006) 276 ss. and also in this volume at 47.

9 Cf. Art 20 (1), 21(2) ICTY Statute.10 Rule 90 (F) (i) ICTY RPE; furthermore cf. Rule 85 (B), 90 (A) (ill), 98 lCTY

RPE; see also infra at 7. (7).

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,faimess 11 and expediency of the proceeding. 12 These objectives, thoughnot completely suspended thereby, have recently at least been overlaid, ifnot even exposed to an adverse pressure, by the so-called "CompletionStrategy"13 imposed upon the ICW by the U.N. Security Council. 14 This isnot to ignore that the concern. by which the completion demand isdetermined may in principle be legitimate; in pursuing this strategy,however, changes to the ICTY RPE have been focused on the expediencyof the proceedings to such a degree that other procedural maxims havebeen left aside. With few other exceptions, the principle of fairness — buteven this one with a one-sided fixation in favour of the accused 15 — seemsto have remained the only maxim that still may find consideration inconnection with measures in expediting proceedings.

Whatever undesired side-effects the Completion Strategy may havehad, at any rate it has achieved that for the first time the widespreadcriticism of the length of the ICTY trials has sincerely been reflected upon.If the improvements asked for are to be more than of cosmetic nature,however, and if they are not to be limited to current bottlenecks, there isno getting away from searching for the deeper causes of this proceduralmalaise and, if necessary, to think about more fundamental structuralreforms.

The following considerations shall be a first attempt in this direction. Ina first step, it will be necessary to look for some of the causes to which thelong duration of ICTY proceedings appear to be owed (4.). Thisexploration will be followed by the question whether and to what extent theadversarial structure of the procedure may be made responsible for thesedeficiencies (5.). As far as this turns out to be the case, the question ariseswhether and to what degree the Statute of the ICTY and its proceduralstructure may be open for changes (6.). If this is possible to a greaterextent than commonly assumed, concluding attention has to be given todesirable measures and procedural changes as well as to potential sideeffects (7.).

11 Rules 65ter (B), 73b1s (D), (E), 89 (B), (D) ICTY RPE.12 Rules 65ter (B), 73b1s (ID), (E), 90 (F) (ii) ICTY RPE. The same purpose is

aimed at by the setting of various time limits.13 This strategy is mainly directed at finalising the activity of the 1CTY by a

certain date, which has been determined for trial proceedings to be the end of2008, with the possibility of being prolonged under certain conditions: seeResolution of the U.N. Security Council 1503 of 28 August 2003 (S/RES/1503)and Resolution 1534 of 26 March 2004 as well as the Completion Reportswhich have to be delivered every six months by the President of the ICTYand the 1CTR to the U.N. For more details see Raab (2005) as well as ElewaBadariKarsten (2007) 182 5.

14 As to measures taken within this concept cf, the reports by Mundis/Gaynor(2004) 906 ss. and 1186 s. as well as (2005) 292 s. and 510 ss.

15 As is characteristic of this one-sided narrow view, reference may be made toFairlie (2004): while she is in principle rightly criticising the pressure theCompletion Strategy is exerting on the expediency of trials, she seems onlyworried about the rights of the accused (cf. pp. 295 ss.): not so, however,about the ascertainment of truth that is hardly less endangered by theCompletion Strategy.

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4. The Length of Proceedings: Causes

In order to make the Completion Strategy a success, one of its mainconcerns and measures is to secure expediency by shortening the lengthof trials. In this respect, the basic evil seems to lie in excessively chargedindictments. Consequently, the most easily available and, thus, most oftencalled-for remedy is to limit the scope of indictments. If the OTP is notwilling to do so of its own accord, this goal may be achieved by putting theability to cut down the prosecution witness and exhibit list and restrict thetime for presenting evidence in the prosecution case into the hands of thepre-trial judge and I or the Trial Chamber.

A first step into this direction has been taken by changing Rule 73 bis(D) and (E) ICTY RPE in two ways: first by authorising the Trial Chamberin the interest of a fair and expeditious trial, to invite the prosecutor toreduce the number of counts charged in the indictment and to fix a numberof crime sites or incidents comprised in one or more of the charges, and,second, to direct the prosecutor to do so if he or she has not honoured theTrial Chamber's invitation. 16 Further efforts in the same direction mayresult in empowering the pre-trial judge and / or the Pre-Trial Chamber tocut down the number of witnesses and documentary evidence used by theprosecution to a greater extent than is already possible and to put strictertime limits on the presentation of evidence in the trial.

Before resorting to such a kind of judicial surgery, however, perhaps amore thorough diagnosis is called for. Let us leave aside for the momentto what extent a merely quantitative reduction of offered evidence wouldbe in the best interests of justice, if that is sincerely understood as puttingan end to impunity and ascertaining the truth to the best extent possible.Let's also leave aside whether a judicial limitation of the accusation — andthat, to be sure, for mere reasons of expediency and not because ofseemingly weak evidence 17 — is reconcilable with a correctly understoodprinciple of accusation as it strikes one as truly essential for an adversarialsystem. At any rate, it appears foremost advisable to ask for the reasons

16 These amendments of the ICTY RPE were adopted by a Plenary Decision of6 June 2006.

17 This very important difference must be kept in mind when learning about thenot unusual powers of pre-trial judges in various systems to change theindictment of the prosecutor or to throw out certain counts, as isdemonstrated In the comparative analysis by Ambos/IVIllier (2007) 348 ss. ForIf I am not mistaken, all these instances have to do with a lack of sufficientevidence or legal inconsistency, but not with judicial restrictions for reasons ofpure expediency, as are at stake here.

18 This association of "adversarial" and "accusatorial" is sometimes viewed asso essential that both concepts are even considered to be of equal meaning as,in particular, by One (2002). Such an equation, however, is neither conceptuallynor historically correct, as has also been observed by Ambos (2003a) 2. Forwithout wanting to go into details here, it should be remembered that theprinciple of accusation, rather than expressing the antagonism betweenprosecution and defence, originates in the endeavour to set against theformer inquisitorial judge an independent prosecutor who, on the basis ofsufficient grounds for suspicion and evidence, shall be responsible for the

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why the indictments and lists of evidence are as broad and long ascommonly deplored at the lCTY: Is it merely stubbornness of the OTP? Ormight it not be attributable to flaws in the present procedural structure andpractice of that Tribunal?

Let me mention just a few features which should not be underestimatedas possible causes of expansive indictments and lengthy trials.

First, the more the prosecution is afraid that should a count fail orevidence expected to be successful turn out to be insufficient modifyingan indictment and/or bringing additional evidence is precluded, the morethe prosecution will be inclined, if not forced, to frame the indictment asbroadly and comprehensively as possible and to present as manywitnesses and exhibits as are available. Conversely, the defence willfeel impelled to counteract with a correspondingly long list of witnessesand documents. 19

— Second, although these expansive dynamics might be mastered by astringent relevance regime, the filtering out of irrelevant evidence willlikely succeed only if the Trial Chamber, as early as practicable ratherthan leaving it until the final judgement, takes control of what evidenceto admit as relevant or, at least, gives the parties some guidance as towhat it deems to be relevant; and, to be sure, this should be done withregard to lack of relevance both for legal or for factual reasons. 2°Otherwise, as appears to be the practice, if my impressions are notcompletely wrong, even well-intentioned prosecution and defencecounsels will feel urged to define the relevance of evidence as broadlyas possible to avoid running the risk of not having presented evidencewhich otherwise might have been considered as relevant in the eyes ofthe judges.

— Third, a similar uncertainty capable of inducing the broadest possiblepresentation of evidence can result from unresolved divergences in theconception of substantive law. Although so far scarcely discussed, ifperceived at all, this is a particularly crucial point for procedural systemswhith are primarily party-driven and not judge-led. 21 In a pinarilyjudge-led trial, the bench is, as a rule, from the very beginning supposedto be familiar with the elements of the substantive law to be applied tothe charges and, if there are uncertainties in the interpretation of the

submission of indictment and its extent; cf. Schtnidt (1964) 197 ss.,(2006) 445, 456, 458. Against this background itis understandable that thecutting down of the accusation for reasons other than legal inconsistency orlack of evidence can be considered an impairment of the prosecution'sindependence, as was in fact monitored by the present Chief ProsecutorCarla del Ponte in her statement to the U.N. Security Council (ICTY-PressRelease/Prosecutor 7 June 2006). For further discussions of the "accusatorial-instructorial" separation of powers cf. my upcoming "Reflexionen zumProzellsystem und Verfahrensrecht internationaler Strafgerichtsbarkeit", in:Eser (2008), 1491 ss.

19 Cf. Kirsch (2006) 289.20 As also pointed out by Kirsch (2006) 289.21 As to the main differences between these two systems cf. supra fn. 2 with the

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law, to make up its mind with regard to the requirements for coming toa verdict of guilty or not-guilty; accordingly the presiding judge will be ina position to direct the presentation of the evidence to the facts whichmight finally become relevant for the verdict, thereby avoiding timeconsuming presentations of legally irrelevant circumstances. If,compared with this, divergences in the conception of the substantivelaw to be applied to the charges occur in a trial primarily driven by theparties, they will, as a rule, not be in a position to foresee whichalternative interpretation of the law the judge may finally follow. If insuch a case the prosecution in its pre-trial brief interprets an element ofthe crime in broader terms than the defence is willing to accede in itsbrief,22 and if the Trial Chamber reserves its understanding of the law tobe applied until its final judgement, or if it refrains even from disclosingany prior indication as to what line of interpretation it will ultimatelyfollow, then the parties, if they do not want to run a risk, have no choiceother than to support their interpretation of the law with what theybelieve to be relevant evidence. If, for instance, the defence in Its pre-trial brief contends that a superior-subordinate relationship in terms ofArticle 7(3) ICTY Statute requires the existence of certain ranks and thebearing of certain insignia, while the prosecution considers both to beirrelevant, then the parties, as long as they do not know whichinterpretation the Trial Chamber will follow, will be forced to presentevidence either (as the prosecution) to prove that ranks and insigniaexisted (although that is, in the prosecution's own view, wronglyrequired by the defence) or to prove (as the defence) that the fighters inquestion were not organised by ranks or insignia (as is, in the defence'sown view, wrongly considered irrelevant by the prosecution). If the TrialChamber in such a situation would as early as possible indicate to theparties whether or not it considered ranks and insignia material toestablishing a superior-subordinate-relationship, a lot of irrelevantevidence could be avoided and time saved.

— Fourth, the aforementioned factors leading to lengthy proceedings areexacerbated by the separation of the trial into a prosecution and adefence case.4 If, as is typical for international trials, the indictmentcontains both a plurality and variety of counts, each of which mayfurthermore cover numerous events, then the presentation of evidencewith regard to the same count and event by the prosecution on the oneside and the defence on the other side may be months, if not years,apart. In such a case, it is all the more difficult to keep the presentationor exclusion of evidence with regard to its relevance under control.

— Fifth, the disadvantages of such distinctly separate trial phases becomeeven more evident when, after the conclusion of the defence's case, a"rebuttal" is called for by the prosecution and then furthermore followedby a "rejoinder" of the defence. 24 If, on the one hand, rebuttal isadmitted in too lax a manner, it can lengthen the trial by the presentation

22 To the purpose and scope of these pre-trial briefs of the parties cf. Rule 65 /7ter ICTY RPE.

23 Cf. Infra 5 (b).24 For details on these possible trial phases cf. Rule 85 (A) ICTY RPE.

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of cumulative evidence. This may occur where the Trial Chamber refrainsfrom indicating that it does not need further supporting evidence as tothe event concerned. On the other hand, a rigid rebuttal practice can turnout to be even more counter-productive. For example, if the prosecutionmust take into account that, due to a very strict and narrow rebuttalregime, the later introduction of evidence will be extremely difficult, ifpermitted at all, it will already at the pre-trial stage resort to precautionswhich may increase its list of witnesses and exhibits and, thus,lengthen the tria1. 25 Further, if the prosecution has to take into accountthat, if it fails with one or two witnesses, it will be precluded fromadducing further witnesses, then it will undoubtedly present several morewitnesses in its case-in-chief in order to avoid the risk of foreclosure ofevidence which would be deemed critical by the prosecution at therebuttal stage of the proceedings. Thus, the less judicial allowance forsubstituting evidence which appears to have failed, either during orbefore the end of the trial, the more a party will, in order to be later onthe safe side, feel compelled at the pre-trial stage to seek to have anover-abundance of evidence admitted.

— Sixth, apart from criticism concerning the comprehensiveness of theindictment, no less attention should be devoted to the vagueness orlack of clarity from which indictments suffer. It is bad enough that justicemay be failed where clearly proven facts cannot be subsumed underthe indictment because it was fixed on one alternative of the crimeprovision and yet missed another one which could have been fulfilled,or because the facts of the charge are described in such a way that theycannot with due certainty be subsumed under (possibly alternative)elements of criminal responsibility. In addition, if such ambiguities in theindictment are neither clarified in the pre-trial stage, nor can later be"healed" by "judicial warning" (as is, under certain conditions, iYassiblein some jurisdictions), 26 a lot of time can be wasted on the presentationof senseless evidence. Furthermore, this does not only concern the trialphase, but the appeals stage as well. For the more the indictment istainted by deficiencies and not corrected as early as possible, the greaterthe risk that even the Appeals Chamber will finally have to deal withsubmissions concerning the correct interpretation or even invalidity ofthe indictment, eventually resulting in an abundance of time-consumingevidence being turned into a wasted effort.

— Seventh, although at first glance it might appear as if the OTP isprimarily to blame for flaws in the indictment and presentation ofexcessive evidence, such an impression would be only partly true. Forin a similar way that the prosecution feels compelled as a precautionarymeasure to offer more evidence than necessary to convince the TrialChamber of a certain incriminating fact, the defence, also being unawareof what the Trial Chamber will find relevant or is possibly alreadyconvinced of, will, in order not to be foreclosed later on in rejoinder,

25 As to difficulties which may arise for the Trial Chamber due to a too narrowlyminded rebuttal regime cf., for instance, Prosecutor v. Odd, IT-03-68-T,Decision on the Motion to Present Rebuttal Evidence, 8 February 2006.

26 , As, for instance, according to Section 265 German Criminal Procedure Code.

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from the very beginning present an overly abundant witness and exhibitlist. This may perhaps even include evidence with respect to non-indictedissues, aimed more at image considerations. Even an indictment flawedby vagueness or lack of clarity may be viewed as useful, and thus leftunchallenged by the defence, in order to serve as grounds for error atthe appeals stage.

5. Causes Conditioned by the Adversarial System

After having identified these and perhaps other possible causes for thelength of adversarial trials, one could be inclined immediately to look for anappropriate remedy. Yet, if we want to accomplish more than a superficialcure of the symptoms, our diagnosis must go a step further in looking forthe reasons by which those causes might be conditioned. Even thoughthese factors may be manifold, I think we cannot refuse to see that themain causes for the phenomena identified previously lie in the adversarialsystem and/or in the manner it has — rightly or aberrantly — developed inpractice. 27 Again, without pretending to be exhaustive, I draw yourattention to two features, both of which appear to be characteristic of theadversarial system28 and potential sources for the problems we are facing.

a. The Proceeding as Party-driven rather than Judge-led

The basic feature of the adversarial system implies that it is, at least inprinciple, left to the parties to decide what evidence to present, whatwitnesses and exhibits to introduce, and in what manner and sequence toperform the examination. the length of the trial substantiallydepends on what the respective party considers to be relevant to its case(or what may serve as a platform for influencing the public at large).

Furthermore, supported by the adversarial philosophy, the judgesshould principally refrain from intervening, due to considering themselves

27 For details to the main features and development of the adversarial system —and for a member of the "common law family" with remarkable criticism — cf.Langbein (2003).

28 To be sure, however, the choice of these characteristics may, from anotherpoint of view, turn out completely differently since the propositions of what istypically 'adversarial", or what should rather be excluded from this concept,can widely diverge. A peculiarty narrow approach is, for instance, taken by Fairlie(2004) who, in her criticism of the ICTY-procedure, sees the adversarialcharacter of a system already getting lost if the judge is empowered to questionwitnesses at any time or to order the production of additional evidence popriomotu because thereby he would lose his impartiality. If such adversarialpurism was correct, even quite some American courts would have to bedriven out of the adversarial camp because of granting their judges the rightto ask questions, even if they may not make much use of it; cf. also infra tofn. 33. with accompanying text.

29 Using the dichotomy of "party-driven" vs. 'judge-driven* of. the description ofthe adversary structure by ICTY Judge Robinson (2005) 1039. Cf. alsoCaivo-Goller (2006) 142 ss.

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primarily as arbiters or "referees", holding the "scales of justice evenly"between both sides.3° Thus, a party, if not stopped by the opposite side,can exploit its power in presenting evidence largely uncontrolled. This cango so far as to have the converse effect that parties can withhold possiblyrelevant facts from the notice of the judges. No doubt that, at first glance, a.non-interventionist judge is welcomed by parties in their longing for power.On the other hand, the more incommunicative the judge, the greater theuncertainty of the patties as to what might be relevant in the minds of thejudges. Thus, again, the parties will be left unguided and feel seduced intoexpanding evidence.

Without questioning the virtue of "judicial restraint" in principle, certainpeculiarities by which international criminal proceedings stand out from thebasic adversarial model of domestic criminal justice should be noticed:

— First, the fundamental distinction between a lay jury system and abench of professional judges. In the first case the jurors are the onlyones to function as "fact-finder", a role in which they, should not beinfluenced by the judge. The latter's role is consequently limited tochairing the trial and to function as a mediator between the parties.Unlike the domestic setting of fact-finding in which the judge iscommissioned to keep the procedural order, international courts suchas the ICTY and the ICC are composed solely of three professionaljudges who are not only responsible for keeping the trial in proceduralorder (in principle through the presiding judge), but who also have todecide on the facts, the application of the law and the sentence. 31A second feature prevailing in the adversarial system is theunderstanding of the proceeding as "the parties' case", the success orfailure of which is supposed to stay in the responsibility of the pate' st —as if a wrong conviction of an innocent or a misguided discharge of aguilty defendant is none of the judge's business. With all due respect forthe ostensibly noble superiority of the common law judge, the propositionthat an international court should be limited to a mere formal control ofthe trial, leaving the outcome of the proceeding to the ability and discretionof the parties, is difficult to reconcile with the feelings of a bench ofprofessional judges commissioned to decide on extraordinary serious

30 Robinson (2005) 1039. To the same effect see the practice report byTochilovsky (2004) 332 ss., and the comparative assessment by Herrmann.(1971) 298 ss. and by Perron (1995) 394 ss. Again going further byrequesting "judicial passivity" as a "seminal role in the adversarial process"Fairlie (2004) 273.

31 To these essential differences between a jury trial and a proceeding tried byprofessional judges see also Safferling (2001) 371. This difference has alsobeen underlined by the then ICTY President Antonio Cassese in his"Statement by the President Made at a Briefing to Members of DiplomaticMissions" (IT/29, 11 February 1994, reprinted in: Morris/Scharf (1995) 649-657) when arguing for the best possible free judicial evaluation of evidence:"There will be no jury sitting at the Tribunal, needing to be shielded fromirrelevances or given guidance as to the weight of the evidence they haveheard. We, as judges, will be solely responsible for weighing the probativevalue of the evidence before us" (651).

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international crimes. As the power and duty to prosecute internationalcrimes are conferred upon the Court, 32 and not solely upon the parties,judges should not only blame them but themselves as well, if, due tonot having sufficiently ascertained the truth, an accused is wronglydischarged or wrongly found guilty.

— Be that as it may in domestic adversarial tradition, this attitude ofjudicial "non-intervention" seems to stubbornly persist even where theinternational rules of procedure would allow the judges to step in byasking questions, to order the production of further evidence andproprio motu to summon witnesses. 33

b. The Separation of the "Prosecution Case" and "DefenceCase"

As already mentioned, the adversarial trial typically starts with theprosecution presenting its charges and evidence, followed — after a possible"interim acquittal" by the Court on counts lacking evidence capable ofsupporting a conviction by the defence presenting its dischargingevidence. This adversarial setting of consecutive prosecution and defencecases is even further prolonged by the fact that each phase begins withthe examination in chief by the respective party, followed by the cross-examination through the counter-party and potentially continued by a re-examination by the first party. It cannot come as a surprise that thisconfrontative setting can produce undesirable side-effects. Only a few ofthem may be mentioned here:— Since the witnesses are called by either one or the other party, the so-

called "prosecution witnesses" and "defence witnesses" may from thevery beginning feel themselves pushed into a one-sided role. This biasis further strengthened by the parties' practice of preparing their "own"witnesses by way of "proofing" them for their testimony in the tria1 35 .Even if this does not grant the parties "ownership of witnesses" 36 and

32 Cf. Art. 1 ICTY Statute and Art. 1 ICC Statute, respectively.33 For references to these judicial powers cf. infra fn. 60-62 with accompanying

text. — As to be drawn from the report by Robinson (2005) 1049 s., there are,indeed, still rather few cases in the practice of the ICTY in which additionalwitnesses were summoned by order of the judges. For another case in whichthe calling of other witnesses was declined by the majority of the bench, cf.Prosecutor v. Ode, 1T-03-68-T, Judgement, 30 June 2006, para. 800 (withreference to the Oral Decision in the Hearing of 1 March 2006, Transcriptp. 16041); cf. also Bourgon (2004) 530, Tochilovsky (2004) 333. In domesticjurisdictions, judges appear even more reluctant in making use of their powerto ask questions or to order further investigations: cf. Herrmann (1971) 320ss., Perron (1995) 394 s.

34 As presently provided for in Rule 98 bis ICTY RPE; cf. Robinson (2005) 1046 ss.35 To this practice cf. — inter Oa Tochilovsky (2004) 329 ss.36 It speaks for itself that propositions of some sort of "party ownership of

witnesses" needed to be judicially rejected, as, for instance, by the AppealsChamber in Prosecutor v. Mr/did, IT-905-1311-AR73, Decision on DefenseInterlocutory Appeal on Communication with Potential Witnesses of theOpposite Party, 30 July 2003).

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may not allow their "coaching" 37 , a normal witness — in spite of beingadmonished by the judge to impartiality — will not so easily be able tofree him- or herself from the role already internalised by having beencalled by the prosecution or by the defence.

— Due to the inherent confrontation which exists in a concept recognisingtwo opposing parties, the criminal proceeding, from the very beginning,is considered a fight in which each side wants desperately to win.Thereby, despite all superficial nobility in the formal behaviour, a spiritof hostility is brought into the proceeding.

— in order to guarantee an "equality of arms" within this fight, the variousprosecution and defence stages into which the trial is divided aresupported by additional 'fighting rules" for the manner in which thevarious chief-, cross-, re- and further examinations may be performed.Even in a simple murder case, it may be difficult to avoid time-consumingrepetition where evidence on the same elements is presented infragments. The situation is exacerbated, if, as is typical for complexinternational criminal proceedings, one side has to present its evidencelong before the other side, without being able to foresee what the latercounter-evidence may be, thus, forcing this party to come forward withevidence covering as broad a scope as possible. Thus, well-meant asthis network of rules for guaranteeing "equality of arms" may be, it iscertainly lengthening the proceeding, if not even being highly detrimentalto those defendants who are not able to handle the complicated proceduralrules or not wealthy enough to be represented by competent counsel.

— This complexity is worsened further by certain examination rules, inparticular those regarding "leading questions" which in the chief-, cross-or re-examination may be admissible on different terms for the defenceand for the prosecution,38 as well as the rules regarding so-called "hostilewitnesses" which, in case of unexpected counterproductive testimony,may be challenged in their credibility by the party who brought them inonly under certain restrictions. 39 Not only that these and similar rules

37 Certainly, as a matter of recent case law, "proofing" of witnesses shall not gofurther than to prepare him or her for a testimony to be limited to essentialfacts (cf. ICTY-Pre-Trial Chamber in Prosecutor v. Limaj, 11-03-66-1,Decision on Defense Motion on Prosecution Practise of "Proofing" Witnesses,10 December 2004, and ICC-Pre-Trial Chamber in Prosecutor v. ThomasLubanga Dyilo, 1CC-01/04-01/06 of 8 November 2006); cf. Elewa/Karsten(2007) 183 ss. As a matter of fact, however, one must be aware that theborderline between a purely formal "preparing" and a material "coaching" of awitness, if not controlled by a neutral authority, is fluid. The fundamentallydifferent attitude against 'witness proofing" by parties in German law becomesapparent in a contribution by Schlothauer (2005): although in this context thequestion may arise whether and to what extent the preparation of a witnessmay be supported by a party, this has apparently never entered this well-known defence counsel's mind.

38 "Leading questions" in these terms, however, may not easily be identified with"suggestive questions" in terms of the German "Suggestivfragen"; cf.Herrmann (1971) 332 ss.

39 Cf. Robinson (2005) 1050 ss. With regard to the mostly required"impeachment" of the witness, cf. Herrmann (1971) 286 ss., 343 ss.

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are, indeed, very difficult to master 4° and prone to prolong the trial, theymay also have a detrimental effect upon the search for truth. if anessential witness is not called by either party because each of them isafraid of not receiving exclusively favourable answers and does notwant to run the risk of a perhaps counter-productive "hostile witness*requiring impeachment, then the result may be the mutual "blocking" ofa key witness that might only be "de-blocked" by the judges, providedthat they do not feel hindered by the need to preserve the adversarialimage of a "non-interventionist" judge.

6. Changes Blocked by the Statute and I or theProcedural Structure?

In view of these findings that could easily be supplemented with furtherdeficiencies, even convinced supporters of the adversarial traditionconcede in conversation that this procedural system, as preferable as itmay be for normal domestic criminal proceedings, is not — or at least notwithout certain modifications — appropriate for the complex challenges ofinternational criminal justice. If this situation is to improve, then changesare indispensable. As soon, however, as changes to the present rules orpractice that seem to contravene adversarial principles are proposed thiswill be instantly opposed by pointing to the relevant Statute and/or theprocedural practice as it has developed at the ICTY. Like probably others,I have been impressed by these arguments for quite some time, but I amnot prepared to do so any longer. For after having thoroughly studied boththe Statute and the RPE of the ICTY, I think that the freedom to changethis Tribunal's practice is much larger than is frequently believed.

— To start with the ICTY Statute as the binding fundament and frameworkof additional procedural rules and case law, when reading it withoutbeing prejudiced by certain assumptions, one will hardly find anycogent indications of a one-sided preference for the adversarial system.Even if it may be true that certain drafters of the Statute had theintroduction of an adversarial procedure in mind,'" according to widelyaccepted rules of interpretation, individual 'background opinions' ofdraft assistants might only gain some kind of binding force if they weresomehow reflected in the text or system of the relevant provisions. Asconcerns the ICTY Statute, I cannot find any hint therein which wouldindicate a clear preference for the adversarial system. 42 And this must,

40 Cf. Tochilovsky (2004) 329 ss.41 This proposition likes to be supported by reference to a report of Morris

Scharf (1995) 158 who had participated in the negotiations which finally led tothe establishment of the ICTY.

42 And this also — though against the assumption of Fairlie (2004) that "someadversarial procedural decisions were pre-ordained by the Statute" (supra fn. 15, ,

pp. 245, 248) — applies to the option granted the defendant in Article 20 (3, )ICTY Statute "to enter a plea". This concession to the defendant could serve'as argument for the adversarial system only if it would be unique to this

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In particular, also be kept in mind with regard to the rights of theaccused guaranteed in Article 21 ICTY Statute.43

— So if at all, the only written evidence in favour of the adversarial systemmay be found in the ICTY RPE, which at least in the initial phase of thisTribunal appeared to be primarily designed along adversarial lines."Even If the structure and practice of the ICTY procedure is properlydescribed as being 'predominantly adversarial", 45 it is neither completelynor unchangeably determinative of this Tribunal's RPE. 46 This may bedemonstrated with regard to two basic provisions:

According to Rule 89 (A) the Chamber shall "not be bound bynational rules of evidence", and according to Rule 80 (B), where aspecial provision is lacking, the Chamber shall apply rules ofevidence which 'are consonant with the spirit of the Statute and thegeneral principles of law". These provisions clearly speak against,rather than for, the general preference for a particular nationalsystem over another.Even where the RPE may be interpreted as favouring theadversarial system, it is reflected more in terms of a procedural optionrather than a strict obligation without leaving room for alternativesThis is particularly the case with regard to the sequence in which theevidence shall be presented at trial. For example, although Rule 85 (A)envisions the normal course of an adversarial trial in terms of theprosecution's and defence's cases, followed by rebuttal and rejoinder,and then followed perhaps by evidence and information ordered bythe Trial Chamber, this is still subject to the discretion of the TrialChamber which, according to the Rule 85 (A) sentence 2, may in theinterests of justice "otherwise direct" the presentation of evidence. 47

Similar examples of procedural rules granting discretion to the TrialChamber can be observed throughout the RPE.

— Although the ICTY RPE are much more flexible than commonlyassumed and, thus, would permit alternative solutions, there seems toexist a fear that certain "cornerstones" of a fair trial would be broken off

procedural model and not reconcilable with other models, neither of which isin fact the case.

43 Cf. to this also infra 6. at the end.44 As, in particular, pronounced by the first President of the 1CTY Antonio

Cassese in his (supra fn. 31 mentioned) statement: "[W]e have adopted alargely adversial approach to our procedures, rather than the inquisitorialapproach found in continental Europe and elsewhere" (650). Cf. alsoTochilovsky (2004) 321 ss. Cf. and Cal vo-Goller (2006) 147 ss.

45 Cf. - among others — Ntanda Nsereko (1994) 508, Robinson (2005) 1040.This assessment, however, appears only correct for the initial phase of theICTY: cf. Ambos (2003a) 5 ss., Ambos (2004a) 44s., One (2002) 1463 ss.

46 This changeability of the 1CTY RPE is not even denied by an advocate of theadversarial system as strong as Fairlie (2004) 294, though she is obviouslyonly one-sidedly pointing at the improvement of the rights of the accused (306).

47 As a matter of fact, however, it seems surprising that this possible option is,with the respectable exemption of Ambos (2003a) 350 s. — scarcely takennotice of. All the more remarkable with regard to the ICC is that both itsStatute and its RPE refrain from prescribing a certain sequence of the trial.

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if the adversarial system (or substantial parts of it) were to be abandoned.In view of such anxieties I cannot help feeling that such fears may becaused by misconceptions of foreign procedural systems or byexaggerated notions of one's own system. Just to give a few examples:• In discussions with practitioners of the "common law" system, I am

often reminded that the so-called Inquisitorial system" of the "civillaw" is persistently and wrongly perceived as not having made anyfundamental changes,'" thus ignoring that in quite a few jurisdictions,perhaps with the exception of the judges' duty to ascertain the truthex officio, there is not much left of former infamous forms of"inquisition".49

• Or with regard to the right to silence: even if recognizing that thisprivilege has over time gone well beyond the original freedom of notbeing forced to confess and of not being sanctioned for keepingsilent or not telling the truth, is the adversarial method really the onlyone to guarantee fairness in this respect?

• The same question may be raised regarding the other tightsguaranteed to the accused in Article 21 ICTY Statute. Even if theremay be national differences with regard to the scope and degree towhich these rights are recognized, to my knowledge one will hardlyfind a so-called "civil law country" today in which these rights wouldbe substantially less secure than in an adversarial system.

7. The Need and Chance for Procedural Changeswithin the Basic Adversarial Model

To have shown the changeability of the present procedural system of theICTY does not necessarily lead to the conclusion that its adversarialelements should be completely substituted by others. Moreover, such acrucial step would presuppose first to have scrutinized all other alternativemodels with regard to their appropriateness for international criminal justice.Besides this, one would have to take into account that a fundamentalchange of model in the procedural structure of a court, if still implementableat all, does not make much sense anymore when the end of a tribunal isalready in sight.

Nevertheless, what still could and should be done is to activate already .

existing elements capable of being further developed to accomplish the

48 As, not without irony, described by JOrgiffield/Brants (1995) 42, 'Theadversarial system invokes images of ,peaceful medieval folk-gatheringsunder sacred oaks, disputes solved voluntarily and satisfactorily by means ofoaths before the elders of the tribe. The connotation of inquisitorialproceedings is very much more terrible: the sinister red robes and pointedhats of an all-powerful Inquisition from which there is no escape, and theestablishment of 'truth' by means of confessions, extracted, if necessary,under torture." Though rightly considered *quite ridiculous when applied tomodern criminal justice" (ibidepi), the persistence of prejudices of that kindtowards continental-European law is even conceded by Fairlie (2004) 247.

49 As in particular with regard to the far-reaching reforms of the GermanCriminal Procedure Code cf. Riea (2006) 446 ss.

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aforementioned goals of international criminal justice as well as to replacecounter-productive adversarial features with better ones. Even in as far asSuch measures would be no use for the present practice of the ICTY in'view of its expiring existence, there remains the hope that the followingrecommendations can be for the benefit of international courts that are stillin their infancy. This expectation is all the more justified with regard toInternational jurisdictions which, as the ICC, are still less moulded to beadversarial than can be observed in the practice of the ICTY.5°• Without pretending to be exhaustive, I would like to submit the followingrecommendations in the light of the goals of international criminal justiceand the deficiencies and needs identified before. Due to the particularattention which in view of the Completion Strategy has been paid to thecauses of widely criticised length of 1CTY proceedings, recommendationsregarding procedural expediency shall be started with (1-6). As desirableas quick proceedings may be, expediency must not take its toll onguaranteeing the ascertainment of the truth (7-9). The same applies withregard to long-term efforts of enduring peace and promoting reconciliation(10-11). Last but not least, the particular responsibility of the judges inaccomplishing the full mandate of international criminal justice must beremembered (12),

a. Measures for the Expediency of the Proceeding

(1) As early as possible, ideally in the course of confirming the indictment, 51the judge should be empowered and obliged not only to examine Whetherthe charges are sufficiently based on supporting material, but also to makesure that the legal elements and modes of individual criminal responsibilityare stated as clearly as possible. This is to enable both the parties and theTrial Chamber to recognize from the very beginning what is legallyrelevant and to be factually proven, and to limit the witness and exhibit listas well as to control the presentation of evidence in the trial accordingly,

(2)As to the legal submissions in the parties' pre-trial briefs, if they takesubstantially different positions with regard to essential elements, the TrialChamber should indicate which approach it is going to follow, in order toagain make the parties aware of what is legally relevant so that they maypresent their evidence accordingly. This kind of "warning" could be made,In a similar way as apparently already practiced by certain 1CTY Chambers,by issuing guidelines on evidence to be observed during the tria1. 52

(3) In order to make the parties refrain from submitting an over-abundance of witnesses and exhibits at the start of the trial, caused by thefear of being precluded from presenting such evidence later if expectationswith regard to a prior witness or exhibit fail, the parties should in a more

50 Cf. Eser (2001) 24 s.: this first short assessment of the ICC Statute does, ofcourse, require further elaboration in which divergent assessments shall alsobe dealt with.

51 Cf. Rules 47,50 ICTY RPE,52 Cf., for instance, Prosecutor v. Ork, IT-03-68-T, Order Concerning Guidelines

on Evidence and the Conduct of Parties during Trial Proceedings, 21 October2004. For further reference cf. Swoboda at p. 367.

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flexible way be allowed to present additional evidence later on if the needshould arise. The same should apply to a more flexible and broaderadmission of rebuttal and rejoinder evidence.

(4)A further step should be taken to allow the prosecution to use somesort of subsidiary/consecutive indictments. For example, a means ofprosecuting .successive stages of an indictment, such as prosecutingparticular counts while holding others in abeyance. a subsidiaryindictment regime must, of course, not be applied without due considerationto the rights of the accused.

(5)Even within one comprehensive indictment with different counts andvarious events, a concentration in time and effort would be reached if thetraditional division between (first) the whole prosecution case and (then)the whole defence case were to be broken up into various units, each ofwhich dealing with the same count and event immediately from both sides,provided of course that the various charges allow for such separation andpresentation. Where possible, and made use of in agreement by and betweenthe parties, interim acquittals by the Trial Chamber might even be allowed.

(6) A more active role of the Trial Chamber, and in particular itspresiding judge, is also called for during the trial with regard to the relevanceof the evidence to be presented. the same reasoning, when it comesto the final briefs and closing arguments, the Trial Chamber shouldindicate to the parties what issues they should in particular focus upon.

b. Measures for Ascertaining the Truth

(7) Expediency of the trial cannot be the only, and not even the mostimportant, objective of the criminal proceeding. Much more fundamentalhas to be the ascertainment of truth as precondition of — equally genuineand literally true — justice56. In a civil proceeding that is directed towards a

53 Although this recommendation appears similar to the restrictions imposedupon the prosecutor through the modified Rule 73 bis ICTY RPE (cf. supra 4.to fn. 16), there is an essential difference to be noted: according to Rule 73bis (C) and (D) ICTY RPE the prosecutor can be invited, and finally evenordered, by the Trial Chamber to reduce the number of counts and eventscharged in the indictment, yet without being allowed to come back to one of,these skipped counts if a prior one has failed. According to the recommendationmade here, however, the accusatory power of the prosecutor would, in principle,remain untouched. in this way enabled to subsidiary replacements of theindictment, the prosecutor would primarily be encouraged to self-restraint.

54 As, for instance, according to Rule 98 bis IC'TY RPE; cf. fn. 34 andaccompanying text.

55 In order to enable the judge to give advice with regard to the relevance of theevidence to be offered by the parties, however, it would be each party's duty ,

to indicate to the judge, no later than at the beginning of its examination;-which facts the party considers to be relevant. Improvements in this direction,however, can, as is also sounding through in the criticism of Jung (2004) 151s. on the occasion of a visit to the ICTY, hardly be expected from strorfp:adversarial attitudes.

56 This principal challenge does, of course, not mean that in criminalproceedings the search for truth could and should be pursued "at any price,

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mere balancing of interests; it may be appropriate to leave it to the partiesto decide what evidence of truth they might present to or withhold from thejudge. This, however, can hardly be the maxim of criminal proceedingsOesigned to ascertain the guilt or innocence of a person and the damageOne to victims. Therefore, at least in the interest of a comprehensiveascertainment of truth in the area of international criminal justice, thejudges should feel obliged to assume a pro-active role.

(8) This plea for a more active judge does not necessarily mean thatexamination by the parties, as is their typical privilege in adversarialsystems, should instead primarily be put into the hands of the judge as it ispracticed in the continental-European tradition. 57 Even if the primaryexamination should stay with the parties, it should at least be more openfor inquiries from the judges. Fortunately, options along these lines canalready be found in the ICTY RPE,58 empowering the judges (1) to put atany stale any question to a witness, 59 (2) to permit enquiry into additionalmatters'', and (3) to order a party to produce additional evidence orproprio motu to summon witnesses and order their aftendance. 61 These'discretionary powers of the judges in the interest of ascertaining the truthare neither explidtly nor implicitly conditioned by any "adversarial" proviso.62

As to the ICC, there is even less doubt about the Trial Chamber'sobligation to ascertain the truth. To make use of their investigative powersto intervene, the judges should in particular feel called upon whendeadlocks between the Earties which, for contrary reasons, restrict thepresentation of evidence, t" should be "de-blocked".

(9) As for the rest, perhaps even a change in terminology wouldcontribute to a more adequate understanding of the procedural structure of

Not only for pragmatic reasons due to human failure but nowadays no less inrespect for fundamental human rights, not the least of the accused, courtsestablished and performed by human beings — and not by an omniscient God— will realistically never reach more than "procedural truth". Consequently,even jurisdictions with an "inquisitorial" tradition, such as, for instance, theGerman Federal Supreme Court, have left no doubt that it is "no principle ofcriminal procedure to explore the truth at any price" (Bundesgerichtshof inStrafsachen — BGHSt 14 [1960], p. 358, 365). Not being able to find absolutetruth, however, cannot excuse us from striding for best possible truth. With allrealism, truth and justice are "intimately intertwined" to such a degree that ajudgement can be accepted as "just" only if it is at least "based on honesteffort to find the 'truth", as has been concluded by Weigend (2003) in hiscomparative analysis of differently far-reaching truth-strategies of th40"adversarial" and "inquisitorial" models; along the same lines see Jung (2004)156. Further cf., not free from bitterness, the analysis of shortcomings in theascertainment of truth by Arzt (2006).

57 In this respect I would not go as far as Kirsch (2006) 287 who, astonishing fora defence counsel, suggests leaving the examination-in-chief to the judge.

58 Cf. One (2002) 1464 ss.59 Rule 85(B) ICTY RPE.60 Rule 90 (H) (iii) ICTY RPE.61 Rule 98 ICTY RPE.62 For more deliberations on how this could be performed, cf. Eser (supra fn. 18),

at 5 (b).63 Cf. supra 5 (b) after fn. 39.

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international criminal justice by characterising it as ucontradictoriar ratherthan "adversariar64. Whereas "adversarial" has an Inimical connotation ofhostility, “contradictorial" is merely expressing the manner of elucidating thetruth by way of contradiction, including confrontation. In such an under-standing of the actors of a criminal proceeding as partners of a — thoughcontroversial — dialogue, the prosecution would be better enabled tocomprehend itself not as a purely one-sided "adversant, determined towin the case by all means and, therefore, primarily looking for incriminatingfacts and evidence. Instead the prosecution would have to consider itselfas an "office" (in terms of the Roman duty-bound officium) which, though ina contradictorial manner, has to search both for incriminating andexonerating factors.

c. Positive Side-effects upon the Mission of internationalCriminal Justice — Outlook

(10) Downgrading the "adversarialitys of the proceedings, in treatingwitnesses as "witnesses of the court" rather than "prosecution witnesses"as opposed to 'defence witnesses", would more easily avoid projecting thenational/ethnical conflict behind the criminal events in the former Yugoslaviainto the courtroom, and perhaps from there even fortify this lesson back tothe watchful communities at home. If witnesses, instead of being attached,and accordingly labelled, to one or the other adversary side, could simplyunderstand themselves as being neutral 'court witnesses* in search oftruth, this could also be a contribution to promoting reconciliation.

(11) If reconciliation between communities strained by historic-culturaltensions is to last and not to be endangered by new untruthful legends,then ascertaining the truth to the best extent possible is not only essentialto rendering justice in the individual case, but also to illuminating the basisof controversial historical events.66 Although judges are not historians,their findings serve as material for historiography. In this respect, an

64 In the same way as this change in terminology could have an easing effect,the replacement of "inquisitorial' by “instructorials would, in addition, comecloser to the history of the procedure: cf. Eser (2004) 63 s., 434 s. as well asthe corresponding models by Perron (1995) 6, 553. For further details onthese terminological adjustments see also Eser (supra fn. 18), at VI. 2.

65 As, by the way, the OTP at the ICC is obliged, according to Article 54 (1) (a)Rome Statute. A decision along the same lines was taken by the Chamber ofthe 1CTY by requiring the prosecutor to present not only inculpatory, but alsoexculpatory evidence (Prosecutor v. Kupreski6 (IT-95-1 6-T), Decision onCommunications between the Parties and the Witnesses, 21 September1998; cf. also Ambos (2004a) 47. For more details to the role of the'prosecutor in international criminal justice see Eser (2006).

66 All that, in this respect, has been stated by Weigend (2003) 169 on the role ofascertaining the truth for settling individual conflicts is to an even greaterdegree valid for violent confrontations between ethnic groups. Along the'same lines see 1CTY Judge Christine van den Wyngaert in a (as far as I knoVunpublished) lecture on "International Criminal Courts as Fact (and Truth),Finders in Post-Conflict Societies" at the Annual Meeting of the AmericanSociety of international Law on 30 March 2006 in Washington, D. C.

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Ihternational tribunal's obligation to establishing the truth goes certainlyWell beyond that of a typical domestic court.

(12) Last but not least: if an international criminal tribunal fails, historyWill not care whether it was due to rules and structures which left it up tothe parties to decide what to present or to withhold, depending on theadversarially one-sided interest of what may best serve to win one's owncase. In the judgement of history, it will be the Court as a whole — with itsjudges at the forefront — that will be held responsible for failure or successin performing international criminal justice.

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