Trends in Admissibility of Hearsay Evidence in War Crime Trials: Is Fairness Really Preserved?

By Halpern, Michaela | Duke Journal of Comparative & International Law, Fall 2018 | Go to article overview

Trends in Admissibility of Hearsay Evidence in War Crime Trials: Is Fairness Really Preserved?


Halpern, Michaela, Duke Journal of Comparative & International Law


I. INTRODUCTION                                             104 II. NUREMBERG                                               107 III. TOKYO TRIALS - THE NUREMBERG ACROSS THE SEA            111 IV. ICTY - THE NUREMBERG AND TOKYO LESSONS APPLIED DECADES     LATER                                                   115 V. A NOTE ON GUANTANAMO - A SPECIAL CIRCUMSTANCE            120 VI. SAFEGUARDS TO ENSURE FAIRNESS                           121 VII. CONCLUSION                                             124 

I. INTRODUCTION

Is justice, like beauty, only in the eyes of the beholder? The concept of justice is neither completely objective nor concrete. Interpretations vary throughout history, between countries and persons, and with changing circumstances. In war, everything changes. Perceptions of right and wrong become malleable and, arguably, subjective concepts. An action that is considered illegal or immoral in everyday life suddenly becomes just, or at least justifiable, when taken in connection with the surreal circumstances of war. To meet this fluid approach to "justice," the law of anned conflict purports to provide guidance as to the legality of certain acts, given these new circumstances.

Thus the concept of "victor's justice" becomes a serious concern in connection with war crime trials where it is easy to conclude that the victor's actions are justified while those of the defeated are unlawful. How could there possibly be a fair trial at Nuremberg for the Nazi soldiers who had a hand in massacring millions of people, in the Tokyo trials for the Japanese commanders who raped, murdered, and oversaw abuses in internment camps, or in the Trial Chambers for the former Yugoslavia for the Bosnian-Serbs who committed genocide? Yet a guiding principle in setting up these tribunals was fairness and justice to all, even to the accused.

As circumstances change and the concept of justice changes, the justice system itself in the context of war crimes might resemble, but cannot actually be the same, as that applicable to normal, everyday life. Consequently, there will necessarily be differences in approach to fundamental ideas of both substance and procedural justice. An example of how this similar-yet-dissimilar system operates at the procedural level can be found in the hearsay rules of evidence. Hearsay is defined similarly across common law jurisdictions, broadly, as out-of-court statements (whether written or oral) where the person asserting the evidence in court for the purpose of proving truth does not have first-hand knowledge of the facts asserted; it is information about the experiences of another. (1) For example, A testifies that B told him he saw C stab D. However it is presented, hearsay evidence is such that the person ultimately making the assertion at issue, B in the previous example, is not available for any form of cross-examination.

Civil and common law jurisdictions differ widely as to the extent of admissibility of such evidence. In civil law countries, hearsay is prima facie admissible, whereas in common law systems, it is only admissible under limited exceptions. This difference stems from the fact that trials in common law jurisdictions often involve layman jurors whom courts try to protect from unreliable or prejudicial information in making their factual determinations. In civil law trials, where the use of juries is not as common, judges are deemed capable of discerning the reliability of such evidence for themselves, therefore, there is less need for caution surrounding the admissibility and evaluation of hearsay evidence.

In civil law systems, commonly referred to as the "inquisitorial model," judges must evaluate all available evidence to arrive at their conclusion. By contrast, in the common law "adversarial model," the two sides in a dispute argue before the judge and/or jury in the hopes that the truth will be revealed through the exercise of arguing. …

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