In the course of war, who determines what is just and fair? Fairness and justice are and should be universal constants; however, the paths to fairness and justice must be malleable and adapt to different circumstances.
The Nuremberg trials were marked by a conscious effort to avoid “victor’s justice” and provide a fair trial to the defendants who committed acts of atrocity. This paper examines whether this goal was achieved in the Nuremberg, Tokyo, and International Criminal Tribunal for the former Yugoslavia trials, as well as briefly touching upon the Guantanamo military commission trials, by looking particularly at the use of hearsay evidence. By placing greater weight on evidentiary criteria such as “relevance,” “probative value,” “reliability,” and “credibility” and developing a more uniform application of these terms rather than promoting a black and white dichotomy of the admissibility of hearsay evidence, judges can better perform the delicate balancing act of justice that takes place amidst the chaos and hostility of war.
War is not a normal circumstance and war crimes are not normal crimes as contemplated by national laws. The path to justice requires flexibility and attention to the precarious circumstances surrounding a world emerging from complete upheaval. The general admissibility of hearsay evidence, in itself, does not provide a great threat to the rights of the accused in the course of war crimes trials. Examination of these war crimes trials indicate that, contrary to common law perceptions, it is possible to allow typically inadmissible evidence and still preserve fairness.
Michaela Halpern, Trends in Admissibility of Hearsay Evidence in War Crime Trials: Is Fairness Really Preserved?, 29 Duke Journal of Comparative & International Law 103-126 (2018)
Available at: https://scholarship.law.duke.edu/djcil/vol29/iss1/3