TY - JOUR
T1 - Free Evaluation of Evidence
T2 - Does the icc need a Law of Evidence?
AU - Sorvatzioti, Demetra Fr.
N1 - Publisher Copyright:
© 2021 Brill Nijhoff. All rights reserved.
PY - 2021
Y1 - 2021
N2 - The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.
AB - The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.
KW - international evidence law - free evaluation of evidence - truth seeking - icc evidence
KW - rules - comparative evidence law - evidence admissibility - hybrid system
UR - http://www.scopus.com/inward/record.url?scp=85119533643&partnerID=8YFLogxK
U2 - 10.1163/15718123-bja10109
DO - 10.1163/15718123-bja10109
M3 - Review article
AN - SCOPUS:85119533643
SN - 1567-536X
JO - International Criminal Law Review
JF - International Criminal Law Review
ER -