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The Mysterious Art of Drafting International Criminal Trial Judgments

Published on January 21, 2013        Author: 

 Marko Divac Öberg is a Legal Officer in Chambers at the ICTY.The opinions expressed here are made in individual capacity and do not necessarily correspond to those of the Tribunal, or the United Nations in general.

The drafting of international criminal trial judgments remains largely shrouded in mystery. There is almost no academic literature on the topic. Of course, the secrecy of deliberations should be respected. However, it takes skill to make a high quality product. Skills need to be learned and it is hard to learn from mystery, so it is worth giving this issue some systematic thought.

Drafting an international criminal trial judgment is a dangerously difficult task. The cases are often very complex. The parties tend to err on the side of tendering more evidence than needed, and in the heat of the action the judges are rarely in a position to deny admission to all the evidence that later turns out to be irrelevant or redundant. Witness testimony and documentary evidence accumulate, at times quite rapidly, for many months if not years. For instance, the trial phase of the Prlić et al. case lasted over four years. The witness transcripts and documentary evidence can easily add up to tens of thousands of pages. In the Popović et al. case, the evidence comprised more than 58,000 exhibit pages and 34,000 transcript pages of trial hearings.

When finally all the evidence has been received, the accused – who are presumed innocent – have often spent years in detention. They are entitled to an expeditious trial, so there is no time to lose before issuing the trial judgment. However, the judges need sufficient time to recall and deliberate on the massive amounts of evidence received over a long period. They also need time to prepare a reasoned, written judgment. In the Nyiramasuhuko et al. case, more than two and a half years passed between the close of evidence and the issuing of the trial judgment.

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