Requests for Review in the Practice of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda

Abstract

This article is concerned with the remedy of ‘review’ provided for in the Statutes of the International Criminal Tribunal for the former Yugoslavia and for Rwanda, in Articles 26 and 25 respectively, which allows a convicted individual or the prosecution to seek the reopening of a case on the basis of a new fact. The main purpose of this article is to provide a comprehensive overview of how this remedy has been applied by the chambers of the ICTY and the ICTR. It focuses first on the relevant provisions set out in the Statutes and in the Rules of Procedure and Evidence of the two tribunals, and then reviews a range of international and national provisions. The latter examination clarifies the concept of review adopted, and reveals the interplay between international and national provisions. It also shows that the remedy of review can be seen as one application of the general principle of law that a convicted individual must have the right to seek the reopening of his or her case on the basis of a new fact, which may show his or her innocence, even after a considerable lapse of time. This article then examines the decisions rendered so far by the ICTY and the ICTR. It considers the factual context of each case and discusses how the applicable law has been interpreted and refined by the judges of the ICTY and ICTR appeals chambers. In conclusion, some suggestions are advanced as to how the pertinent Rules of Procedure and Evidence could be made clearer and perhaps fairer, in the light of the experience gained from the practice of the two tribunals and the provisions of the Statute of the International Criminal Court.