This chapter analyses the relationships between fairness, the rights of the accused, and procedure, in the case of the use of adjudicated facts at the ICTY – that is, where Trial Chambers take judicial notice of facts which were previously adjudicated in other proceedings at the Tribunal, as permitted under Rule 94(B). Facts may be entered into the trial record without actual evidence on that contested fact being brought in the proceedings at hand. The evidentiary foundation for the fact – the document or testimonial evidence that was used to establish the fact in the first trial – is not necessarily admitted to the evidential record of the second trial. Thus, adju-dicated facts are admitted to the trial record, potentially without the accused being able to contest the reliability of the document or to cross-examine the witness whose testimony formed the basis of that fact. The use of adjudi-cated facts is, therefore, ‘an exception to the general rule that all facts in issue or relevant to the issue must be proved by evidence – testimony, statements, documents or other material’. In this way, the use of adjudicated facts is one example of an ‘inquisitorial drift’ in the procedural regime governing international criminal trials, which has increasingly seen written evidence admitted instead of oral testimony.

Adjudicated facts are particularly helpful for crime-base evidence, where they will theoretically help to narrow the scope of the litigation to issues that are particularly in dispute, such as issues of linkage (connecting the accused to events alleged to have been physically perpetrated by subordinates) and authority (establishing the responsibility of the accused for events allegedly perpetrated by others). At the ICTY, where repeated cases have examined the same incidents, adjudicated facts are meant to take advantage of evidence that has already been admitted at the Tribunal. The use of adjudicated facts is also designed to ensure that successive Chambers are consistent in their rulings. Despite these theoretical benefits, as I will outline below, there are significant concerns about the use of adjudicated facts on both the fairness of the trial and the rights of the accused.

An understanding of the issues raised by adjudicated facts at the ICTY is important, in part to understand the potential for similar issues at the ICC.