Landmark Cases in

International Criminal Law

Prarthana Mazumder
The Tadic & Akayesu Trials
● In order to develop the Rules of Procedure and Evidence, the ICTY’s first two
Trial Chambers’ “relied heavily on proposals from the United States
government,” NGOs and other major legal systems in the world.’

● ICTY and ICTR , “generally indicates that the Rules are not intended to be
comprehensive,” “international rules on evidentiary matters before the
Tribunals can be developed through their own decisions.”
● The conflicts in the former Yugoslavia and Rwanda are similar in many ways.

● The discretion of the Trial Chamber to develop new rules within the text of an
actual trial became problematic in the Dusko Tadic Trial , the first case heard
before either Tribunal . The evidentiary rules established in the Tadic Trial
created the framework upon which future trials will be based.
 The trial of Dusko Tadic

● Allegedly upon the suggestion of Tadic, Kozarac became the target of an

artillery barrage by Serbs. “Of its 15,000 Muslim residents, 2000 were killed in
the artillery barrage. Another 5,000 were summarily executed after the town’s
surrender.” The remaining Muslim residents were forced into concentration
camps.
● Tadic, known as “the Butcher”, was arrested on February 12, 1994, and
indicted in Germany; however the ICTY requested that his case be
transferred for prosecution at the Hague.
● Tadic was indicted on 13th Feb, 1995 on 34 counts, including breaches of the
Geneva Conventions, violations of the laws and customs of war, and crimes
against humanity.
● 125 witnesses testified during the seven-month trial.
● An interesting fact is that ICTY chose its first defendant a man not charged
with genocide.
 The Trial of Jean Paul Akayesu

● Jean Paul Akayesu became involved in the politics of Taba in 1991 when
Rwanda returned to Multiparty System.
● He helped bring a new political party to Taba called “Mouvement
Democratique Republicain (“MDR”) an extension of the 1957 “Hutu
grassroots movement.”
● Akayesu was elected as the bourgmestre of Taba in 1993.
● Akayesu was charged with numerous counts of “genocide”, “complicity in
genocide”, “direct and public incitement to commit genocide”, “extermination”,
“murder”, “torture”, “cruel treatment”, “rape”, and “crimes against humanity.”
● InTaba acts of sexual violence, beatings, and murders took place. Akayesu
was deemed to have “facilitated the commission” of these crimes because he
allowed them to happen” on or near the bureau communal premises.”
● Akayesu was arrested on 10th Oct,1995 in Zambia by authorities there and
was subsequently turned over to the Detention Facilities of the ICTR in
Arusha, Tanzania, on 26th May,1996.
● The trial began on 9th Jan,1997 and ended on 26th Mar,1998 after the
testimony of 41 witnesses-28 for the prosecution and 13, including the
defendant, for the defense.
 Evidentiary Problems in the Cases
● One of the biggest evidentiary problems in the Tadic case arose even before
it began was the use of anonymous witnesses.
● The Sixth Amendment to the United States Constitution provides a criminal
defendant with the right “to be confronted with the witnesses against him…”,
the ICTY and ICTR provide similar protection to witnesses and victims.
Protection of witnesses and victims should be considered in light of the
defendant’s right to receive a fair trial as the Statute does not provide any
particular guidance to the limitation of the confrontation right.
● In Akayesu Trial, the Trial Chamber permitted the vast majority of witnesses
to testify behind the screens so that their identities are hidden from the
public.No witness testified anonymously.
● Use of expert testimony

The problem with the expert testimony in Tadic was linguistic one. The
evidence was “based on second, third, and even fourthhand testimony” of
victims and witnesses.

● Use of hearsay evidence

Hearsay evidence admitted through lay testimony presented special

problemsin Akayesu’s trials. This was because of translatiiing the Rwandan
language - Kinyarwanda to French or English.
 Implications for the International Criminal Court
● In drafting the Statute, the drafting committee and the Rapporteur of the
International Law Commission drew on the experiences of the ICTY and
ICTR.
● With the establishment of the ICC, there need not be ad hoc tribunals created
to cover tragic events like those that have occured in the former Yugoslavia
and Rwanda.
● ICC’s jurisdiction unlike the ICTY and ICTR, ICC will not be able to require
that certain war criminals be tried before it. It will have to follow the very
particular procedures laid out in Article 13 of the Statute to garner jurisdiction
from domestic courts.
● The ICC’s Rules of Procedure and Evidence are largely modeled after the
Rules utilized by the ICTY and ICTR.
● In creating the rules for the ICC, it was critical for the drafters to consider the
evidentiary problems that arose in the Tadic and Akayesu trials in order to
avoid repeating them.