국제형사재판에 있어서 증거법에 관한 연구

The international criminal trials after World War II has been criticized for constituting victors’ justice, as the judges came from the victor countries whereas the accused were from the defeated nations. However it should be noticed that the accused in the international criminal trials can only be punished by fact-finding based on evidence. In this connection, evidence-based process in the international criminal trials can support that the post-World War II international criminal trials has been fair trial for justice rather than the so-called victors’ justice. In comparison with domestic criminal evidence, international criminal evidence has a very distinctive characteristic: the international criminal trials tribunals enjoy full discretion in deciding whether or not an evidence should be admitted. This approach to the problem of admissibility of evidence is much more flexible than any domestic legal systems on evidence, including common law and civil law, partly because the international criminal trials are operated by professional judges without jury. And partly because there are little evidence which could sustain criminal action in situations of armed conflict. Because of these reasons, the international criminal tribunals has focused on standard of proof rather than admissibility of evidence. Practices of international criminal trials since post-World War II show that the trials has supported liberal admission of evidence when evidence is relevant, that is, evidence having any tendency to make the existence of any war criminal fact. In order to prevent war crime which threaten international peace and the safety of human kind, war criminals should be punished. In this connection, it seems that the trend towards the liberal admission of evidence is likely to be followed in the future.