Defence Investigative Ethics

2020 ◽  
pp. 251-281
Author(s):  
Michael G. Karnavas
Keyword(s):  
Best Practices ◽  
Hybrid System ◽  
International Criminal ◽  
Civil Law ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
Practical Advice ◽  
System P ◽  
Defence Counsel ◽  
Trial Advocacy

The investigation of war crimes has proved to be a challenging task for the Defence at the International Criminal Tribunal for the former Yugoslavia (ICTY). At the Court’s infancy, civil trained defence counsel with no experience in adversarial party-driven procedures were unfamiliar with aspects of case preparation and trial advocacy, such as gathering evidence by conducting their own investigation, or cross-examination through leading questions based on a coherent theory of the case. These adversarial modalities also came with specific ethical duties. This chapter offers some practical advice and best practices relevant to Defence Counsel practising in national jurisdictions of the former Yugoslavia region and elsewhere, where adversarial modalities similar to those found in the ICTY procedure have been adopted in reforming their criminal procedures—transitioning them from civil law to a more hybrid system.

scholarly journals Prosecutor v. Dragan Nikolić: Decision on Defence Motion on Illegal Capture

2003 ◽  
Vol 16 (3) ◽  
pp. 541-552 ◽  
Author(s):  
JAMES SLOAN
Keyword(s):  
Federal Republic ◽  
Bosnia And Herzegovina ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Former Yugoslavia ◽  
The Subject ◽  
Defence Counsel ◽  
The Hague

In November 1994 the International Criminal Tribunal for the former Yugoslavia (ICTY), indicted its first accused, Dragan Nikolić. It was not until over five years later, however, in April 2000, that he was finally arrested and transferred to The Hague. The circumstances of his arrest – which reportedly featured his being violently abducted from his home in the Federal Republic of Yugoslavia (FRY) by Serbian criminals before being transferred to the NATO-led Stabilization Force in Bosnia and Herzegovina and, ultimately, to the ICTY in The Hague – were the subject of a pre-trial motion. Nikolić's defence counsel asserted that the nature of his capture was such that the appropriate remedy was to dismiss the charges against him and order his return to the FRY. They made this assertion despite an admission, for the purposes of the motion, that the captors lacked any connection with SFOR or the ICTY. The trial chamber rejected the motion. In reaching its decision, the trial chamber considered fundamental issues about what constituted an illegal capture for the purposes of the ICTY and, without explicitly doing so, appeared to reject the view of the Court in Eichmann that a person may not oppose his being tried by reason of the illegality of his capture.

The ICTY and the Defence Legacy

2020 ◽  
pp. 48-61
Author(s):  
Colleen Rohan
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
Legal Practice ◽  
Defence Counsel ◽  
The Creation

The chapter presents a defence perspective on the legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). The role of the Defence was initially sidelined in institutional discussions on the tribunal. This chapter traces the creation, functioning, and activities of the Association of Defence Counsel Practising Before the ICTY (ADC-ICTY). It outlines the ADC-ICTY contributions to the institutional legacy of the ICTY in organizing, training, and representing defence counsel thereby improving legal practice and protecting the rights of the accused.

Defence Perspectives on Sentencing Practice in the International Criminal Tribunal for the Former Yugoslavia

2003 ◽  
Vol 16 (4) ◽  
pp. 751-776 ◽  
Author(s):  
STEPHEN M. SAYERS
Keyword(s):  
International Criminal ◽  
International Criminal Tribunal ◽  
Plea Bargaining ◽  
Former Yugoslavia ◽  
Common Phenomenon ◽  
Sentencing Decisions ◽  
Mitigating Factors ◽  
Recent Developments ◽  
Defence Counsel

This article presents some defence perspectives on the sentencing practices of the ICTY and the ICTR. Recent developments, such as the new regime of plea bargaining recognized by recently adopted Rule 62 ter, are examined, along with the concepts of deterrence and retribution frequently recognized as the most important sentencing factors. In addition, the concept of ‘substantial co-operation’ with the prosecution is reviewed, an increasingly common phenomenon in sentencing decisions, and one which appears to entitle persons who demonstrate ‘substantial co-operation’ to significant discounts in their sentences. The article reviews aggravating and mitigating factors and their treatment and consideration by ICTY and ICTR trial chambers, as well as the treatment of discretionary sentencing decisions by trial chambers on appeal. Generally speaking, the author concludes that the increasingly common practice of plea bargaining, and the existence of ‘substantial co-operation’ with the prosecution, must be very seriously considered by any defence counsel at the outset of a case, while significant sentencing discounts may still be available.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

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