The Admission of New Prosecutorial Evidence in International Criminal Retrials

Abstract On 31 May 2023, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) delivered its judgment in Stanišić and Simatović, marking the conclusion of the first full retrial in the history of international criminal law and providing occasion to reflect on how retrials before the International Criminal Court and other international criminal tribunals ought to be conducted. The focus of this article pertains to the Trial Chamber’s approach to the admissibility of new prosecutorial evidence during the course of the retrial, and specifically, its decision to exclude all new prosecutorial evidence from the scope of the retrial, unless exceptional circumstances justified its admission. This article questions whether the adoption of this exclusionary rule was a valid exercise of the Trial Chamber’s discretion and, from a normative standpoint, whether such a decision was and remains a desirable approach to the admissibility of prosecutorial evidence in international criminal retrials. This article argues that despite the strong and persistent objections raised by the prosecution during the Stanišić and Simatović retrial, the exclusionary rule constituted a valid exercise of the Trial Chamber’s powers and could serve as a blueprint for the admissibility of new prosecutorial evidence in potential future retrials.