The hybrid international-domestic criminal tribunals are the opposites of the International Criminal Court. The Rome Statute stipulates the procedural and substantive criminal law for this purely international court. On the other hand, the hybrid tribunals rely on a blend of international criminal law and the domestic criminal laws of the affected countries. Additionally, hybrid tribunals utilize a mixture of international and domestic jurists (Laura A. Dickinson, The Promise of Hybrid Courts, 97 The American Journal of International Law 295, 295 (2003)). Examples of currently active UN affiliated hybrid tribunals include The Kosovo Specialist Chambers and Specialist Prosecutor’s Office, and the Extraordinary Chambers in the Courts of Cambodia.
In order for verdicts handed down by international tribunals to enjoy timeless legitimacy, every effort must be made to ensure that the accused has been treated with utmost fairness throughout the entirety of the prosecution. Failure to do so, in the name of hastening proceedings or avoiding higher costs, only cripples the aims of international criminal justice. The absence of fair and open proceedings amplifies criticism that the accused was always doomed because of the monstrous deeds he is accused of doing, and that powerful political forces sought his demise. This piece singles out the trend among hybrid tribunals to prefer secret and non-adversarial pre-trial charge screening hearings as a worrisome setback for trial fairness in war crimes prosecutions. Such proceedings should be shunned going forward. They amount to an abandonment of the common law notion of an open and adversarial preliminary hearing, and are antithetical to the Rome Statute.
The Preliminary Hearing at the International Criminal Court
A preliminary hearing is an open and adversarial pre-trial proceeding in some common-law jurisdictions, such as Canada and the United States, that provides a judicial check on the charging decision of the prosecutor for felony offenses. The preliminary hearing also exists at the International Criminal Court where it is called the “Confirmation of the Charges Hearing.” In all three of these jurisdictions, pre-trial proceedings occur in the presence of the accused and her counsel. As will be shown, the adversarial nature of the common law preliminary hearing is the key characteristic that differentiates it from other pre-trial charge screening mechanisms.
At the International Criminal Court, the Rome Statute provides for an open and adversarial preliminary hearing. Article 61 of the Rome Statute states that:
“…within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.”
Article 61 stipulates that the prosecutor has the burden of presenting evidence to “establish substantial grounds to believe that the person committed each of the crimes charged.” The prosecutor will start the proceedings by presenting material evidence pointing to the accused’s guilt. Hearsay evidence may be permitted at judicial discretion (Jocelyn Courtney & Christodoulos Kaoutzanis, Proactive Gatekeepers: The Jurisprudence of the ICC’s Pre-Trial Chambers, 15 Chi. J. Int’l L. 518, 539 (2015)). By relaxing the normal rules of evidence, the hearing can proceed with dispatch so that it will not turn into a full trial.
The accused will be given the opportunity to challenge the prosecution’s case by cross-examining witnesses and presenting its own evidence (Article 61). At the end of the hearing, the pre-trial judge will decide whether the prosecutor has met its burden. The judge can confirm the charges and force the accused to stand trial, dismiss them, or adjourn the ruling and advise the prosecutor to offer further evidence or amend its indictment. If the accused absconds or waives his or her right to be present, this hearing may proceed in abstenia at the discretion of the pre-trial judge. However, the Rome Statute requires the accused to be represented by counsel if the pre-trial judge believes it is “in the interests of justice” to do so (Article 61).
What are the Benefits of the Adversarial Preliminary Hearing?
The accused can always elect to waive the hearing and proceed directly to trial, but many do not. This is because the adversarial preliminary hearing provides a powerful opportunity for the accused to dismiss the prosecution’s case before trial begins, and to appreciate the scope of the case that the prosecution will bring forth at trial (Ronald J. Allen, Criminal Procedure: Adjudication and Right to Counsel 1096 (2nd ed. 2016)). The importance of the preliminary hearing has been recognized by the high courts of the United States and Canada. In Coleman v. Alabama, 399 U.S. 1, 9 (1970), writing for the majority of the Supreme Court of the United States, Justice Brennan identified four key benefits of the adversarial component of these proceedings:
“Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.”
Furthermore, the Supreme Court of Canada has noted the critical function of the preliminary hearing in the Canadian criminal justice system. For instance, Justice Estey wrote in Skogman v. The Queen,  2 S.C.R. 93, 105 (Can.), that “[t]he purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” In R. v. Hynes,  3 S.C.R. 623, para. 30 (Can.), the Supreme Court of Canada has described the preliminary hearing as “a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial.” Additionally, at paragraph 31 the Court stressed the ancillary function of the preliminary hearing as an early “discovery mechanism” for the accused.
The Non-Adversarial Pre-Trial Hearings at the International Hybrid Courts
At the hybrid tribunals of Kosovo and Cambodia, the concept of an adversarial preliminary hearing does not exist. In both tribunals the prosecutor’s indictment must be judicially screened by a pre-trial judge. However, these proceedings operate largely in the absence of the accused and his counsel.
Rule 86 of the Kosovo tribunal’s Rules of Procedure and Evidence requires the prosecutor to forward its proposed indictment “confidentially and ex parte with the Pre-Trial Judge for a decision…”. As such, the accused is not involved in this process. The prosecutor will provide the pre-trial judge with the evidentiary material supporting the proposed charges. The rules permit the pre-trial judge to take proactive steps and work closely with the prosecutor by asking him or her to provide additional evidence, to review the indictment with the aim of providing greater specificity, or to narrow the scope of the charges (Rule 86). This judge will then confirm or dismiss the charges on the basis of whether a “well-grounded suspicion has been established” by the prosecutor to commit the accused to trial (Rule 86).
The pre-trial charge screening at the Cambodia tribunal is also non-adversarial. Here, the prosecutor recommends charges to a judicial organ called the Co-Investigating Judges. The two judges that make up this office, investigate the facts alleged by the prosecutor and make a final ruling on whether there is “clear and consistent evidence” that an indictment should be issued to commit the target of the investigation to trial (Rule 55). In reaching their decision, the Co-Investigating Judges may interview the charged person. Unless the right to be represented by a lawyer is waived, defense counsel must be present during the interview (Rule 58). The charged person can request the Co-Investigating Judges to collect evidence on his or her behalf, but there is no opportunity for the defense counsel to actively challenge and the dissect the inculpatory evidence (Rule 58). The judicial deliberation of the Co-Investigating Judges is secret and all of their work documents are confidential (Rule 56).
The Shortcomings of the Non-Adversarial Pre-Trial Hearings at the International Hybrid Courts
The problem with non-adversarial pre-trial hearings is threefold. First, the accused is denied a meaningful opportunity to challenge the accusations and engage in a discovery process of the prosecution’s case. This potentially harms her defense strategy as the case proceeds to trial.
In both of the hybrid tribunals, the accused is barred from cross-examining the prosecution’s witnesses, and to present its own witnesses in rebuttal. As such, the benefits of the adversarial process identified by Justice Brennan in Coleman v. Alabama are denied to the accused.
Second, the task of uncovering the fatal flaws of the prosecution’s case, if there are any, is best left to a zealous advocate who is representing the accused in open court. Pre-trial judges who operate behind closed doors are easy targets of accusations of bias and undue cooperation with the prosecution, even if there is no merit to such accusations. Outside perception of trial fairness is critical to the legitimacy of the trial process. A transparent and adversarial proceeding is the best way to stymie such accusations. Indeed, secret pre-trial charge screening proceedings of the American Grand Jury system have frequently been criticized for closed door deliberations, especially in cases of police shootings of unarmed citizens. The secret model of the French examining magistrate, which hybrid tribunals have largely adopted, has also similarly been criticized for its secrecy. It has been said that “the most controversial aspect of criminal procedure in Civil Law countries is the examining phase of the proceeding, under the supervision of an examining magistrate. The secrecy and length of the proceedings…have all brought the institution of examining magistrate under fire” (Erika Fairchild, Comparative Criminal Justice Systems 128 (1993)).
Finally, as has been noted by the Supreme Court of Canada, an adversarial pre-trial charge screening process has the benefit of “filtering out weak cases that do not merit trial.” The unique ability of a zealous and experienced defense counsel to draw attention to the flaws in a prosecutor’s case should not be underestimated. By striking out deficient charges at the preliminary hearing, the hybrid tribunals can reserve their limited resources for trying cases that truly merit a prosecution (Jocelyn Courtney & Christodoulos Kaoutzanis, Proactive Gatekeepers: The Jurisprudence of the ICC’s Pre-Trial Chambers, 15 Chi. J. Int’l L. 518, 522-524 (2015)). Furthermore, given the fact that an accused cannot be tried twice for the same crime, an adversarial preliminary hearing is an excellent forum for the prosecutor to test the strength of their case. The potential outcry of a botched prosecution caused by prosecutorial overconfidence harms the aims of international criminal justice.
In conclusion, an adversarial preliminary hearing can significantly enhance trial fairness in international hybrid courts. Its benefits have been strongly noted by the Supreme Courts of the United States and of Canada. In the interest of greater legitimacy, secret proceedings conducted in the absence of the accused and her counsel should be shunned in any international criminal tribunal. Going forward, the adversarial preliminary hearing as practiced at the International Criminal Court is an excellent model to be copied by the hybrid tribunals.
Mohammad Vayeghan is a 2018 LL.M. student at Columbia Law School. He obtained his J.D. degree from the University of Calgary, Faculty of Law in 2015. Prior to Columbia, he worked as a Crown Prosecutor in the province of British Columbia, Canada.