“Dead Men Tell No Tales”: Rule 92 Bis – How the Ad Hoc International Criminal Tribunals Unnecessarily Silence the Dead
The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda adopted Rule 92 bis-Proof of Facts Other than by Oral Evidence-as a good faith attempt to hone the rules of evidentiary admissibility and provide a better balance between fairness and efficiency. While Rule 92 bis provides certain benefits, this Note argues that because of the unique nature and purpose of the Tribunals, this Rule is not the optimal framework within which to determine the admissibility of deceased witness statements. Applying Rule 92 bis to prior statements of deceased witnesses needlessly reinforces existing incentives to kill important witnesses before they can testify in person at the Tribunals and unnecessarily limits the admissibility of testimony of classes of victims that survived the initial crimes but did not live long enough to testify in person in front of the Tribunals. This Note presents two ways that the Tribunals could admit written statements of deceased witnesses while maintaining many of the important benefits of Rule 92 bis, and consequently, provide a better balance between fairness and efficiency than is currently achieved under Rule 92 bis.