Rulemaking from the Bench: A Place for Minimalism at the ICTY
30 Pages Posted: 14 Oct 2013
Date Written: October 13, 2004
This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. This proposition is supported by reference to the case law of the Tribunal, including its handling of the claim of journalistic privilege, with a particular focus given to the fair trial rights of the accused.
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