Gates Public Service Lecture: Judge Patrick Lipton Robinson

April 24, 2013

Michelle Storms

Well good afternoon everyone. I want to welcome you and thank you for being here on what appears to be our first beautiful day of Seattle 2013. So I am going to say that you must've known that it would be well worth it to not be outside for a little while and that is certainly the case. We are very very honored today to have Judge Patrick Lipton Robinson who is from Jamaica originally and who has served with the international criminal Tribunal to the former Yugoslavia and many other incredible and important things as well which you will hear about shortly. So we are really excited to welcome him as a Gates speaker in the Gates public service law program tonight or this afternoon. I don't know I'm saying tonight. So I'm just very happy that you were all able to join us. And maybe I don't know everyone. So I am Michelle Storms. I am assistant Dean for public service law here at the University Of Washington School Of Law. So just welcome, welcome thank you for coming.
These speaker series opportunities are a chance for us all to hear from someone who has dedicated their life to public service in a wide range of areas. And the area of international human rights and criminal justice on the international scale is an area of great concern to many of our students. Many of you have work experience in that area, hope to have work experience in that area and great lessons about the world to be learned here today. So what I would like to do is first introduced Matt McCarthy to you who is going to introduce the judge.
Matt McCarthy is a really special person who among other things served as well in a clerkship with the international criminal Tribunal. And helps to build some connections between arrow law students and that work in the externship department so that some of our law students are able to go and really do that fabulous work. So very briefly about Matt McCarthy: he is now back here in Seattle working with the firm belief smart firm doing civil defense litigation including: construction defect, professional negligence, medical malpractice and personal injury claims. He is a member of the Washington State Bar Association. He got his law degree in 2008 at the University of Chicago law school where he was president of the international law society and vice president of the black law students Association. He completed to judicial clerkships: the first for the Hon. Elaine Hoberman here in Washington Court of Appeals Division II in Tacoma. And then the second in the trial chamber to the international criminal Tribunal for the former Yugoslavia and The Hague. And then he also worked for King County prosecuting attorney's office for a period of time. So he was really helpful in working with us to bring the judge here. And so now join me in welcoming Matt McCarthy to introduce the judge.

Matt McCarthy

Good afternoon, thanks for welcoming me to UW law. Thanks also to Dean Storms for the invitation to introduce Judge Robinson and thank you to Rachel Ryan and the international law society for all of the work that they have done to put this event together. For today's Gates lecture Judge Robinson will speak on the interaction of legal systems in the proceedings of the international criminal Tribunal for the former Yugoslavia. Judge Robinson began his legal career as a public prosecutor in Jamaica after receiving his law degree with honors from London University. He later served as Eagle advisor to the Jamaican Ministry of foreign affairs also as an assistant attorney general and deputy solicitor general. Internationally Judge Robinson has served as Jamaican ambassador to the law of the sea conference in 1982, on the Inter-American commission on human rights, on the UN international Law commission, as Jamaican representative to the legal committee of the UN Gen. assembly where he negotiated several treaties and was instrumental in drafting an early model statute for an international criminal court.
In 1994 the United Nations Security Council established the international criminal Tribunal for the former Yugoslavia the ICTY with jurisdiction over war crimes and crimes against humanity committed during the Yugoslavian civil wars of the 1990s. This court has its seat in the Hague Netherlands and Judge Robinson began his service there 1998. Among the many trials he judge most famously he presided at the trial of Yugoslavian president Slobodan Malosavich. And Judge Robinson served as president of the ICTY from 2009 to 2011. In 2010 he was awarded the order of Jamaica out one of the nation's highest honors. He now simultaneously sits in the appeals chamber for the ICT why and also on the appeals chamber for the ICT are-the international criminal Tribunal for Rwanda.
He came from his home in the Hague to visit us here in Seattle so please join me in welcoming Judge Patrick L Robinson.

Judge Patrick L Robinson

Thank you very much Matt. Members of faculty, law students, ladies and gentlemen I am very thrilled to be here with you today and particularly thrilled to be informed that it's the first sunny day that you have had for a long time. If that is so and if I had anything to do with that it would not be in relation to my place of residence because I can assure you that in the Netherlands this perhaps is gloomy as Seattle was in the past few days. It would have to do with the place of my birth Jamaica of which I am very proud and you will hear a little more about that later. But what a wonderful site this is. You must all be encouraged and prompted to work so hard in surroundings like this. It is just absolutely beautiful this place. And I think you are very blessed to be here. I love the Netherlands but in the Netherlands you neither go up or down you just go and coming from a place like Jamaica with so many hills and colleagues and just the wonderful undulation in the topography I am so happy to be here because it reminds me so much of Jamaica. Well so much for my introductory remarks.
I am here to speak about the interaction of legal systems in the work of the tribunal and the impact that the interaction has on the fairness of proceedings. The tribunal is a court that tries persons for the most serious violations of international humanitarian law committed during the conflict that engulfed the former Yugoslavia. It is an international court and was established by the United Nations in 1993 and consists of judges selected by that body. The judges come from countries with differing legal systems. The interaction of legal systems in the work of the tribunal is a quotidian occurrence for example when I walk the corridors I may run into my German or French colleague. Note at a very informal and personal level this is a meeting of the two main legal systems in the world: the common law adversarial in the civil law inquisitorial systems. At a more formal level it would have been reasonable to forecast and interaction of the two systems in the establishment of a judicial institution by a body whose permanent members are the United States, United Kingdom, France, China and Russia-all countries in which one of the two systems or features thereof is operative. The tribunal as originally constituted consists of 16 permanent judges. Today in the last phase of its work, it has 19 permanent judges. There are also eight ad litem judges. These are judges appointed by the UN Secretary-General at the request of the tribunal to sit on one or more specific trials. All 161 persons indicted by the prosecutor have been arrested and to date the tribunal has concluded cases against 136 persons convicting 69 and acquitting 18 and proceedings are ongoing against 25 persons.
Though expeditious this is a key component of the right of an accused to a fair trial both the international covenant on civil and political rights and the tribunal statute guarantee an accused person the right to trial within a reasonable time or without undue delay. On this very issue the tribunal has been criticized by the international community for the slow pace of its trials and it is constantly challenged by the demands of the completion strategy set by the Security Council in 2003. Trials of the tribunal last six months to four years. Very often comparisons are made to the Nuremberg trials after World War II which lasted for the relatively short time of 11 months. But they are the bulk of the evidence is documentary. On the contrary, at the tribunal most of the evidence comes from hundreds of witnesses who can testify about the alleged mass crimes.
For example in the Milosevic case the prosecution sought to call over 1000 witnesses. At trial ultimately 352 prosecution witnesses were called 52 defense witnesses were also called. The main challenge the tribunal has faced in its groundbreaking work is to devise mechanisms that expedite its proceedings without prejudicing the rights of the accused. As a court ruling on individual criminal responsibility the most important principle the tribunal must respect is the right of an accused to a fair trial. It is to be found in article 14 of the international covenant on civil and political rights and all the major regional human rights instruments including the European convention of human rights and the African charter on human and People's rights. The common law adversarial system is followed by the United Kingdom Commonwealth countries and the United States. The civil law inquisitorial system is largely followed on the European continent and in Latin America. The main difference between the two is that while the adversarial system is driven by the parties the inquisitorial is driven by the judge. The judge in the civil law system is required to be far more active than his counterpart in the common law system. He is actively involved in the collection of evidence and indeed has at his disposal what has been called an information rich dossier of all the evidence. His counterpart in the common law system where the collection of evidence is the providence of the parties that is the prosecutor and the defense is not as involved in this process. It is important to stress that these are general descriptions of the two systems and that there are variations from the norm in both systems. Indeed as one commentator has put it, “as a system adds superimposes or eliminates certain features one can only say it reflects the dominant model."
Of the first observation to be made is that unlike the position of most common law countries there is no jury at the tribunal and consequently the judges are both triers of fact and law. This feature is more can to the situation in civil law countries. Generally, the collection and presentation of evidence of the tribunal follows the common law adversarial system. An independent prosecutor is responsible for the investigation and prosecution of crimes. Evidence is presented in a sequence of examination in chief, cross examination and re-examination. Fact-finding and the presentation of evidence in the civil law system are predominantly in the hands of the judge. At the tribunal these functions are predominantly in the hands of the parties.
On the other hand admissibility of evidence that the tribunal is based on a more relaxed civil law model in which there are professional judges as the arbiters of law and fact. Indeed, pursuant to rule 80 9C of the tribunal's rules evidence is admissible as long as it is relevant and probative. Thus, hearsay evidence is admissible though generally that is not the case in the common law adversarial system. Those of you who are practitioners will appreciate the time that questions or objections to the hearsay rule take up in court. I have been in a case in Jamaica where an objection has taken the evidence to be led preaches the hearsay rule and it will take two or three hours to argue that point before the judge rules. Though at the tribunal all evidence is admissible provided it is relevant and probative. There is less need for the hearsay rule in a system where there are professional judges able to assess and weigh the evidence. In common law countries where there are lay jurors in criminal trials is trials of fact there is a greater need for limiting the use of hearsay evidence. But the at the tribunal as in the civil law system we admit evidence if it is relevant and has probative value and then determine in light of the totality of the evidence at the end of the trial what we need to attach this evidence. The approach to the admission of evidence tends to be inclusionary not exclusionary as it tends to be in the common law system.
There are several procedures drawn from the civil law inquisitorial system that have been introduced in trials at the tribunal for the purpose of expediting proceedings. At the informal luncheon that I participated in a question on this subject was asked of me and the question had to do with what do I have to say about the criticism of international criminal justice. It is slow and it is expensive. What I am going to describe to you now is one of the responses to that criticism. Generally, evidence in the form of written statements is not used in the common law adversarial system which has a distinct preference for the orality of evidence in criminal cases where the accused or the prosecution having the right to cross-examine a witness of the other party. I have been watching a trial on television since I have been here. It is a murder case. What's her name? I can't remember her name. (Inaudible 19:27) and it's a classical illustration is the common law adversarial system: the prosecution presents its case, the defense responds. The prosecution is rebutting. That is the adversarial system: one party is set against the other. In the civil law system you don't have that. You have a judge who takes charge of the case. And I should tell you that they don't have the highest regard for the common law system. They say it's a game. They prize the civil law system because in their view it better exemplifies the search for truth and the criticism they make of our system is that we are only concerned with proof. And they tend to see that as being a little artificial. They prefer a system in which the judge has the power to inquire into the truths and it is not left primarily to parties.
Know the inference of the common law system for the orality of evidence expressed in the tribunal's rules prior to 2001 has since been neutralized by subsequent amendments authorizing the admission of written evidence. The tribunal has adopted this procedure to expedite trials because in trials we have hundreds of witnesses. While the practice is not unknown in the common law system it remains exceptional. And I will give some examples later on.
As a general rule a chamber may receive the evidence of a witness in written form if it is in the interest of justice to do so. But the most significant specific measure for the reception of written evidence is one that is introduced in 2000. And it is a procedure whereby evidence is given in written form in lieu of oral testimony whether it be in the form of witness statements or transcripts of previous testimony so long as the evidence goes to prove of a matter other than the acts and conduct of the accused as charged in the indictment. Now this requires an explanation. In most of the trials before the tribunal and certainly those in which political or military leaders are charged the alleged crimes have not been committed by the accused personally, physically but by others examples soldiers, paramilitaries etc. And these are persons under the control of the accused or they are part of a joint criminal enterprise. Much of the prosecution case in our trials is concerned with adducing this so-called crime-based evidence. So long as the evidences of that kind it may be introduced in written form, statement or transcript of the previous testimony. Of course in order to prove its case the prosecution will also have to present other evidence linking the accused directly to the crimes. And usually this comes from insiders, that is witnesses close to the accused who may have knowledge of his rule in the crimes charged. So much for the use of written statements.
But we also have the admission of transcript of previous testimony. And that achieves expeditiousness in the following way. I'm going to give an example. Let us say in 1999 accused A is tried for war crimes. And among the witnesses at the trial are B,C, and D. In 2001 accused a is tried for war crimes. Among the witnesses at the trial are B,C and D who have testified at A’s trial on the same set of evidence. Since the evidence to be given in E's trial is the same as that introduced at A’s trial the transcript of evidence form that trial is admitted in E’s trial if it does not relate to the acts and conduct of the accused.
Now the admission of written evidence is one thing but what if a party wishes to cross-examine the witness? Here again the tribunal has been very much influenced by the civil law system in which the judge who is required to discover the truth is very active. In the common law system a party will determine whether it wishes to cross-examine with the judge retaining the right to control the cross-examination by various means. Example: disallowing improper questions. Now at the tribunal so far as this procedure is concerned the procedure introduced in 2000, the determination as to whether there is to be cross-examination or written evidence is made by the trial chamber. A party it is also important to bear in mind that the defense can also use the procedure in presenting its case. But a party will apply to a trial chamber for the admission of a written statement or a transcript of previous testimony. The chamber grants the application if it is of the view that evidence is crime-based evidence. That is, evidence in which as I have explained the accused is not physically, personally involved. No cross examination is allowed for crime-based evidence. Now practitioners in the United States will immediately see the difference with their system. It is the judge not the party who determines whether cross examination takes place.
Can you imagine this trial which is now taking place the judge telling the defense counsel I am going to determine whether you cross-examine? It couldn't happen in our system. But more than the interaction between these systems although the tribunal's trial system is at base common law adversarial with our prosecution and defense we use the civil law procedure of written statements and it is the judge who determines whether there is cross-examination.
Now evidence which goes to prove of the acts and conduct of the accused may be admitted in written form if the witness is present in court, is available for cross-examination and the witness attests that the written evidence accurately reflects the witness’ declaration and what the witness would say if examined.
Another example to which the admission of written evidence has been expanded by amendments to our rules is the introduction of a rule that allows for the admission of written evidence of a person who has subsequently died or who can no longer with reasonable diligence be traced or who is physically or mentally unable to testify. Although common law jurisdictions have a distinct preference for live testimony some common law jurisdictions do have procedures allowing written statements. The United Kingdom has such a procedure and in 1997 Jamaica amended its evidence act to do very much the same thing. Although I suspect that with Jamaica what was important was the provision allowing written statements where the maker is kept away from court proceedings by threats of bodily harm and that procedure is reflected in another tribunal rule. You can tell me whether you have such a procedure here in the US.
Now these are examples of civil law inspires procedures that have been introduced for the purpose of expediting proceedings. Where there is no cross examination the time saved is the time that would have been used for examination in chief and cross examination. Where there is cross-examination the time saved is the time that would have been used for examination in chief. But global time saved is not always readily noticeable because even when there is no examination in chief the party calling the witnesses allowed to ask certain basic questions and to introduce documents.
Now apart from the civil law procedures we have discussed today there exists a procedure coming from the common law system that is judicial notice. At the tribunal judicial notice is divided into two: judicial notice of facts of common knowledge not subject to reasonable dispute and judicial notice of adjudicated fax or documentary evidence from other proceedings at the tribunal. On a general level judicial notice is a time-saving mechanism meant to avoid stating the obvious during trial. Indeed under rule 201 of the US federal rules of evidence judicial notice may be taken of fax not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned. This definition under US laws more I can to the judicial notice of fax of common knowledge under rule 90 4A of the tribunal's rules. And it is found in many other common law jurisdictions for example: that Christmas falls on 25 December. Courts would take judicial notice of that. You wouldn't have to lead evidence to prove that. I think I remember when I was studying law in England. I saw as an example of fact of which judicial notice would be taken that little boys are likely to run across the road. When I look back at that knowing I think that may be a bit contentious area but the more controversial procedure is judicial notice of adjudicated fax.
Now the notion of adjudicated fax covers situations where a trial chamber makes a certain factual finding for example: Bosnian Herzegovina was the most multiethnic of all the republics of the former Yugoslavia with the prewar population of 44% Muslims, 31% Serbs and 70% Croats. And this determination made by the trial chamber is either unchallenged on appeal or confirmed by the appeals chamber. And that fact thus becomes adjudicated and a second trial chamber may then subsequently admit that fact in its ongoing proceedings provided certain conditions are met. Of these the most important are: the fact must have some relevant vents to an issue in the current proceedings, the fact must not contain characteristics of an essentially legal nature, the fact must not be based on an agreement between the parties of the original proceedings and importantly the fact must not relate to the acts, conduct or mental state of the accused.
Since by virtue of this procedure fax adjudicated in a previous case may be admitted in an ongoing trial. The trial process is thereby expedited. The prosecution or the defense if it is availing itself of the procedure does not have to lead evidence to establish that fact. Once the fact has been admitted the burden of contesting it shifts to the accused creating a rebuttable presumption. This shift is given rise to much debate as to whether there is a breach of the principle that the burden of proof is on the prosecution. It would seem to me that the failure of the defense to rebut the presumption of the accuracy of an adjudicated fact will result in the acceptance of that fact by the trial chamber thereby facilitating the discharge by the prosecution of its ultimate burden of proving its case beyond a reasonable doubt. I think that last sentence would betray the disquiet that I feel about adjudicated facts.
Another example of the interaction of the two systems is the approach the tribunal has taken in respect to witnesses. Several elements which reflected predominantly civil law influence have been introduced into the regime for witnesses. In the common law adversarial party driven system a witness is generally seen as the witness for party either the prosecution or the defense. I don't believe there is anyone in this room including the professors old enough to recall the film witness for the prosecution starring Charles Lawton, do you know it? Nobody? No? My gosh I have just given away my age. Why don't you Google it and you'll see. It is a very famous movie made in the, I would think probably the early 1950s. But you have heard of Charles Lawton? No? Again? A famous English actor. This is not the case in the civil law inquisitorial judge driven system. A witness is for the court not for a particular party. The case law of the tribunal is that the witness is not the property of the party. One party may request an interview with a witness of the other party in preparation for trial and if that witness is unwilling to be interviewed a subpoena may be issued to compel them to do so.
Similarly, in common law jurisdictions a party may not cross examine its own witnesses unless the witness is hostile that is not prepared to tell the truth. Of course the issue of a party discrediting his own witness does not arise in the civil law system where witnesses are called and questioned under the authority of the court which as available to its any previous inconsistent statement of the witness. Now at the tribunal we follow the common law practice that allows a party to cross-examine its own witness when that witnesses hostile. But the case law of the tribunal has diverged from the common law in one important respect and this provides a classic illustration of the interaction between the two legal systems.
In common law jurisdictions generally the contents of the previous statement are only received for the purpose of challenging the credibility of the hostile witness and are only received as evidence of the truth of its contents if the witness changes his position adopts the previous statement. But one trial chamber held that that exclusionary removal was not applicable at the tribunal since the rules of the tribunal permit the admission of any evidence including hearsay provided it is relevant and has probative value. Therefore as statement of a witness declared to be hostile may be admitted both for the truth of its contents and challenge the credibility of the said witness even in cases where the witness has not confirmed the contents of his statement for the chamber. In that particular trial chamber admitted video recordings with transcripts of the interviews of witnesses found to be hostile. In the appeals chamber confirmed the correctness of that approach. It is interesting to note that the common law procedure for the treatment of a hostile witness has been introduced into the tribunal's legal system. But in response to the requirement that such a procedure must be interpreted and applied in light of the tribunal statute and its rules it was stripped of one of its features. That is that the previous inconsistent statement of a hostile witness is not admissible as substantive evidence.
Another example of the interaction of the legal systems in the tribunal's functioning is the rule which allows a trial chamber to call witnesses and this is usually done after the parties have completed a presentation of their evidence. Generally in common law jurisdictions a judge has no power to call witnesses. You can correct me professors if that is not the position the United States. It is certainly the position in Jamaica and the United Kingdom.
That is the province of the parties-the calling of witnesses. This incapacity is not a feature of civil law jurisdictions where the active judge has a dossier of the evidence and based on the witness list of the parties determines who is to be called as witnesses. Now the tribunal has followed the civil law system in this area by empowering a trial chamber to call witnesses and this power has proved to be very useful in cases where neither the prosecution nor the defense wishes to call a particular witness whose testimony the trial chamber may deem fundamental for the establishment of the truth. And also in cases where particular witness not wishing to be identified with either the prosecution or the defense may only be prepared to testify if called by the trial chamber. That is a procedure I have used on many occasions when I presided as a trial judge.
In the last example I wish to give is a procedure that in the United Kingdom and in other Commonwealth countries is called no case to answer. At the end of the prosecution's case a submission is made by the defense that there is no case to answer and that therefore they charges against the accused should be dismissed. This procedure is reflected in rule 98 base which requires that a trial chamber shall at the end of the prosecution's case enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction. The main purpose of the no case to answer procedure in common law jurisdictions is to prevent jurors bringing in an unjust conviction on the basis of evidence that cannot lawfully support a conviction. But since there are at the tribunal professional judges of both law and fact and there is no jury it may be questioned will whether the procedure is really necessary. It is reasonable to assume that the tribunal's professional judges would be able to do what the lay juror may not that is assessed evidence to determine whether it can lawfully sustain a conviction. You will also note that the international criminal court does not have a corresponding procedure in its rules. But the possibility presented by the procedure for an early acquittal of the accused thereby achieving expeditiousness is a strong argument for its retention. In some instances accused have been acquitted on a number of counts or charges at the halfway stage thereby drastically reducing the scope of the indictment and potentially the length of time necessary for an accused person to present his defense. Of course the rule also protects the fair trial rights of the accused since he should not be called upon to answer the judges in respect of which there is no evidence capable of support a conviction. Those are all the examples that I wish to give.
And in conclusion I want to say that the main contribution of the tribunal to international criminal law is the body of procedural and evidentiary rules it has developed in the first international criminal tribunal since Nuremberg. The rules thus established have been serving as a template for other international criminal tribunals. And some countries have even expressed an interest in adopting them for their domestic courts. The fair trial rights set out in the international covenant on civil and political rights reflect customary international law and therefore apply to all countries irrespective of whether they are parties to that treaty. Those rights make no distinction between countries that follow the common law adversarial system and those that follow the civil law inquisitorial system. Both sets of countries would argue that their system achieves a fair trial but it is clear that each arrives at that goal by a different road. The system the tribunal has produced is not merely an amalgamation of the common law adversarial in the civil law inquisitorial systems it is one which is ciré interests??? 46: 38. Ultimately the system that is evolving at the tribunal is neither party driven nor judge driven it is fairness driven. This does not mean it is perfect. I have criticized publications. As I said previously conflicts between the two systems must be resolved using the principle of fairness as the plane to smooth the edges in the alignment of legal systems. Thank you.

Michelle Stormsy

We have a little bit of time and the judge is graciously agreed to take a few questions if there are any. So now is your, eh?

Judge Patrick L Robinson:

Well you are continuing your line of questioning yeah?

Audience one

A question for you as a practitioner: You talk very much about the systems but through analogy of taking baseball and cricket and you know which have some similarities and bringing the best aspects together you still have the players on the team used to playing one or the other and perhaps not quite sure of their role or how they derive with the rest of the team. So as a practitioner on a mixed court that is mixing roles and tradition have there been challenges with that? How does that work for you?

Judge Patrick L Robinson:

Yes but we have managed to iron out the problems and that I think it's because ultimately although we come from different systems we are seeking the same thing. We are seeking proceedings that are fair. We have to guide us principally article 14 of international covenant which sets up the rights of the accused and as I said it makes no distinction between civil law countries and common law countries. But yes I think you are right. I mean there is a sense in which you never that the only will bring to your work the system from which you come. But I have found I will sooner agree with the judge from a civil law country then a common law country if the background of the judge in the civil law country is international law. You see the judges come from different backgrounds. Some have worked in international laws practitioners or as professors. Some have worked as judges. You tend to find that those whose background has been in the practice of criminal law is a judge I find they tend to come they have a more pragmatic approach and would want to see things move along as quickly as possible. Now I have the two backgrounds because I was both as a prosecutor background counsel I was a practitioner in criminal law but I also worked in international law. But I have tended to find that I can relate more quickly to a judge from the civil law country if his background is in international law as mine have been then with a judge from the common law country which is my system if that judge is not a judge with a background in international law but a background in the criminal law practice and trial practice law. So yes I would agree with you that the two... You do bring your system to the court but you quickly learn that you have to divest yourself of the trappings of that system in the interest of finding what is it that produces fairness in a particular set of circumstances.

Audience two

What do you think about the future of the ICC because you've been talking about…(inaudible51:47)… And it seems that the provisionals are... And overall it doesn't seem like there is a particular region like African countries… There is ongoing investigation but it's very hard to…

Judge Patrick L Robinson:

Where are you from?

Audience two

From Russia.

Judge Patrick L Robinson:

You are not parties to the ICC like the United States as well as China.

Audience two

(Inaudible 52:53)

Judge Patrick L Robinson:

Nor is Jamaica for that matter. Thank you for saying that. You know my tribunal is not the ICC and so I don't want to be drawn unnecessarily into a discussion of the ICC but you are right that most of the cases have come from Africa although the ICC would in a response say that most of those cases it is the states who have referred them to the ICC but there is that perception that it is a court which is principally involved in the trial of cases from Africa. Did you have a specific question him about the differences between…

Audience two

Actually I am more interested in… There is a role… That say that there is immunity over personal documents… And you've been talking about all evidence can be basically submitted that the ICTY…(Inaudible)

Judge Patrick L Robinson:

55:20 I believe that would be considered but I think I would say generally, I would say generally that we have admitted our evidence rules are generally inclusionary. We tend to admit evidence not to exclude it. And that is one of the big differences that I have found between the law that I practiced in Jamaica in the Jamaican courts and I have a feeling that is certainly the same in England that our evidence rules exclude evidence, you have to put up a fight to get your evidence in. It's not so at the tribunal so that's my response to you. Is would be yes and I believe we have admitted diaries and the fact that the ICJ may have said something else is not dispositive for us because we are not bound by what the ICJ says. It may persuade us but we have a system that we have developed and we believe it is a fair system. We of course take account of the work of the ICJ but you must always bear in mind the ICJ has an entirely different role. It is not a criminal court it deals more with state responsibility not individual criminal responsibility.
Any other questions?

Audience three

I am motivated a practitioner. I am not a lawyer...

Judge Patrick L Robinson:

Happily

Audience three

I work for a Swiss organization and because we are a financial organization I have to look at multiple jurisdictions and so I noticed that so for instance in markets in Scandinavia one set of rules about registration of financial… All the way through the… My question is a more general question do you think there is more variation in the common law world or in the civil law world on regulation?

Judge Patrick L Robinson:

That is a very specific question and I think I would only be able to answer that if I had studied the relevant area.

Audience three

Well I just thought I would try to ask.

Judge Patrick L Robinson:

There is a lot of variation I think in the common law world because even within the Caribbean it is common law the system the basic common law system is there but you will find differences in the application of criminal law is between Jamaica and Barbados or Trinidad and Tobago. In the same way I think you would find differences between the United States and say the United Kingdom. So I don't think you should be looking for commonality in financial regulations unless of course those regulations are based on an international agreement and are seeking to give a fax to the international agreement. That is where you will have the commonality but if each country is generally left develop its own system there isn't anything in the common law system that would necessarily mean that one common law country would have the same set of regulations as the other. But for the kind of matter that you speak of I would tend to look to see whether there are international agreements that...

Audience three

Like the accounting standards or something?

Judge Patrick L Robinson:

Perhaps, perhaps yes.

Michelle Storms

Well I know that there are one or two other questions but it is time for us to adjourn and so the good news for those of you who really would like to ask a question is that the judge is joining us in room 115 right after this for a reception and it is another chance for us to say hello to him and thank him for being here and to get those last questions answered. I would like to say that I am really grateful to have this opportunity, this window into a different world of practice-one that I am personally not familiar with. I have not worked in the international sphere and I'm grateful to have gotten the sense of what is happening there. And well this this got loads of money. Someone realize somebody came to the mic. And to really have an appreciation of the differences in the systems and the ways in which they do interaction a goal that you really hold dear to see that interaction be used to lead to justice. And that's very important and so I'm really grateful for that, grateful for you sharing your wisdom and your depth of experience with us about that. And again grateful to all of you for joining us this afternoon and so I hope that all will join in room 115 and let's thank Judge Robinson.

Last updated 5/13/2013