Implied External Limitations on the Right to Cross-Examine Prosecution Witnesses: The Tension between a Means Test and a Balancing Test in the Appraisal of Anonymity Requests

By Croquet, Nicolas | Melbourne Journal of International Law, May 2010 | Go to article overview

Implied External Limitations on the Right to Cross-Examine Prosecution Witnesses: The Tension between a Means Test and a Balancing Test in the Appraisal of Anonymity Requests


Croquet, Nicolas, Melbourne Journal of International Law


Both the ad hoc Tribunals and the International Criminal Court have admitted implied external limits to the right of cross-examination by resorting to an extra-textual interpretation of their statutes. The International Criminal Tribunal for the former Yugoslavia has authorised recourse to absolute anonymity by referring to the object and purpose of its' Statute, which incorporates the protection of witnesses. The International Criminal Tribunal for Rwanda has so far refrained from granting or even considering such a protective measure. It nonetheless took a step towards authorising absolute anonymity by permitting the prosecutor to conceal prosecution witnesses" identities from the accused until the witnesses are called upon to testify in court, at a time when this was unambiguously limited to the pre-trial proceedings. The ICC has paralleled the ICTR's process" of admitting implied external limits to this defence right. While the ICTR and the ICC share a similar approach to implied external limitations on the right to cross-examine, both ad hoe Tribunals share a similar rationale for tailoring these implied limits. Both the 1CTY and the ICC use a 'less restrictive means' test in their justificatory eriteria. The sequential justificatory test and the importance of the 'means test" that can be derived from the ICTY's traditional decisions on absolute anonymity have paved the way for a more holistic assessment of interferences with the right to cross-examine, which prioritises defence rights over witnesses" substantive rights'. The ICTR has' also begun to embrace such a vision of the relationship between the two sets of competing rights'. The uncertainty in the field of implied external limitations upon the right to cross-examine is exacerbated by the fact that both ad hoc Tribunals have, in miscellaneous cases unrelated to anonymity, adopted a sequential two-prong test composed of a 'legitimate interest' requirement and a 'less restrictive means' test that are meant to apply to interferences with any defence right.

CONTENTS

I   Introduction
II  Statutory Framework
      A The Ad Hoc International Criminal Tribunals
      B The International Criminal Court
III Analysis of the International Criminal Courts' Case Law through
    the Lens of Conceptual Tools
      A The Admission of a Justificatory Framework for Reviewing
        Interferences with the Right to Cross-Examine
          1 The International Criminal Tribunal for the Former
            Yugoslavia and the Conditional Admission of Absolute
            Anonymity
          2 Intermediary Forms of Interference with the Accused's Right
            to Cross-Examine Prosecution Witnesses: Partial Anonymity
            and Rolling Disclosure
      B The Presence of a Mixed Conflict of Values
      C The Recognition of a 'Means' Test
          1 The Suitability Criterion
          2 The 'Less Restrictive Means' Test
          3 The Principle of Practical Concordance: An Alternative
            Explanation?
      D The Recognition of a Strict Proportionality Requirement
      E The Recognition of the 'Priority to Rights' Principle
      F The Failure of the Hierarchy of Rights Principle for Solving
        the Underlying Conflict of Rights
IV Conclusion

I INTRODUCTION

The aim of this article is to show that the ad hoe Tribunals have gone through a phase of 'tightening', and then of 'loosening', their approach to interferences with the right to cross-examine, unlike the International Criminal Court, which has stuck to its 'end and means' test when considering defence rights.

A central proposition is the absence of commonality between the three international criminal courts regarding judicial treatment of interferences with the right to cross-examine. This observation correlates with the existence of patterns of 'normative similarity' within pairs of tribunals: (i) between the two ad hoe Tribunals; (ii) between the International Criminal Tribunal for Rwanda and the ICC; and (iii) between the ICC and the International Criminal Tribunal for the Former Yugoslavia. …

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