The Appeals Chamber of the International Criminal Court has just issued a very interesting judgment on evidentiary matters. In the Bemba case, the Trial Chamber admitted a raft of documents that were part of a list submitted by the Prosecutor. The Chamber said they were prima facie admissible. On appeal, both the accused and the Prosecutor challenged this method of admitting evidence. The Appeals Chamber granted the appeal. It insisted that evidence cannot be admitted in bulk, and that the Trial Chamber must make an individual determination in each case.
Although the judgment does not frame the discussion in terms of competing legal traditions, it struck me that this is a matter that sits at the fault line between the inquisitorial and adversarial systems. In the inquisitorial system, evidence would be admitted in bulk at trial based upon a file already prepared (by a judicial official), whereas in the adversarial system evidence must be presented and formally admitted, subject to various challenges. This decision is important in terms of positioning the Court with respect to the two legal traditions.