International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the Rome Statute of the International Criminal Court (1998) that address judicial assistance deserve investigation. Do the rules propounded in Blakie and in the Rome Statute create the right conditions for the institution of fair trials in international criminal courts in our world today? Are such rules possible? The author argues that the diplomats in Rome failed to establish a procedure for the production of evidence that will lead to the goal of a fair and effective trial. This is cause for concern if and when an International Criminal Court comes into being.
Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404 (2000).