Commentary: Rule 61 Procedure in the International Criminal Tribunal for the Former Yugoslavia: A Lesson for the ICC
Instead of conducting trials in absentia, the International Criminal Tribunal for the Former Yugoslavia has an innovative procedure against an accused not in custody. Officially, this ‘Rule 61 procedure’ is only a proceeding for reconfirming an indictment, which does not determine an accused's guilt or innocence. In substance, however, it has functioned as a trial-like procedure to some extent. As a judicial finding on legal issues, the decisions under the procedure have influenced subsequent trials. This article traces the evolution of the procedure and explores its unique character. In particular, by examining essential problems thereof, this article clarifies some points to be considered in establishing a similar mechanism for the International Criminal Court.
Key Words: Rule 61 procedure; trials in absentia; aspects of ex parte procedure.
1 Associate Professor of International Law, Kagawa University, Japan; and Visiting Professor at the Netherlands Institute of Human Rights (SIM), Utrecht University, The Netherlands. The author is grateful to Professor Fried van Hoof, Mr. Göran Sluiter and Mr. Joe Washington for their comments on an earlier draft of this article.