The Practice of ‘Witness Proofing’ in International Criminal Tribunals: Why the International Criminal Court Should Prohibit the Practice

2009 ◽  
Vol 22 (3) ◽  
pp. 501-523 ◽  
Author(s):  
WAYNE JORDASH
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
Witness Preparation ◽  
Uncritical Acceptance ◽  
The Right ◽  
Truth Finding ◽  
Integral Feature

AbstractWitness proofing – or witness preparation – has been common practice at the ad hoc criminal tribunals but was prohibited in the first trial before the International Criminal Court (ICC) (the Lubanga case). The ad hocs have robustly defended the practice, claiming that it assists the efficient presentation of evidence and enhances the truth-finding process. This article examines the way in which the ad hocs have allowed the process to become an integral feature of their procedural regimes without sufficient examination of these apparent merits. The ad hocs appear to have accepted that prohibiting the parties from rehearsing, practising, and coaching evidence was in the interests of justice, but yet – in the uncritical acceptance of the benefits of proofing – have sanctioned practices which are impossible to distinguish. The Lubanga case represented a welcome attempt by the ICC to examine proofing and its attendant risks and, for the reasons outlined in the article, the chambers arrived somewhere close to the right decision.

The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court

2000 ◽  
Vol 13 (4) ◽  
pp. 949-984 ◽  
Author(s):  
Stuart Beresford ◽  
Hafida Lahiouel
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Legal Assistance ◽  
Human Rights Law ◽  
International Criminal Tribunals ◽  
International Obligations ◽  
The Right

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.

scholarly journals The right to self-representation before International Criminal Tribunals, while not absolute, should only be denied in limited circumstances

2020 ◽  
Vol 62 (3) ◽  
pp. 235-247
Author(s):  
Paul Bassett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
The Right

One of the most controversial aspects of the International Criminal Tribunals (ICTs) and the International Criminal Court (ICC) concerns the right to self-representation. Many defendants have sought to use the trial as a stage on which to challenge the legitimacy of the court and to play to the crowd in their own home states. As a result, the various ICTs have sought to place limitations on the accused’s right to selfrepresentation. The recent amendment to the Statute of the Supreme Iraqi Criminal Tribunal (SICT) is an example of this. This evolution raises questions concerning the effect such limitations may have on the overall fair trial rights of the accused. This article argues that there is a need to establish a guaranteed right of self-representation, provided the accused adheres to an objective set of conditions placed on the right. Such conditions should be confined to those strictly necessary to ensure the integrity of the court. Such a move would allow the court to gain some much needed legitimacy while at the same time deny defendants the ability to turn the court into a political stage.

Victims and the International Criminal Court: Three major issues

2003 ◽  
Vol 3 (4) ◽  
pp. 345-367 ◽  
Author(s):  
Sam Garkawe
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Protective Measure ◽  
Legal Representation ◽  
International Crimes ◽  
International Criminal Tribunals

AbstractThe Statute of the permanent International Criminal Court (the "ICC") agreed to in Rome in 1998 contains many provisions that deal with the specific concerns and rights of victims and survivors of the international crimes that the ICC will have jurisdiction over. It consolidates the work of the two ad hoc international criminal Tribunals (the former Yugoslavia and Rwanda) in this area, but also further enhances the role and rights of victims in a number of innovative ways. These three international criminal Tribunals thus collectively represent an important step forward in the recognition of the suffering and the position of victims and survivors of international crimes. This article will examine three main issues in relation to victims and the ICC. First, after identifying the protective measures for victims allowed at the discretion of the international criminal Tribunal for the former Yugoslavia, it will focus on the most controversial measure (which the ICC can also order) - the non-disclosure to the defence of the identity of witnesses. Does this protective measure violate a defendant's right to a fair trial? The Statute of the ICC also allows, for the first time in international criminal justice, for the right of victims to obtain their own legal representation, subject to the discretion of the ICC. The second issue is how is this going to work in practice in light of the fact that international crimes normally involve hundreds, if not thousands or even tens of thousands, of victims? And finally, while the ICC Statute provides for the possibility of reparations to victims, where will the money come from, and thus what are the chances of victims actually being able to receive compensation?

Pre-Conviction Detention before the International Criminal Court: Compliance or Fragmentation?

2010 ◽  
Vol 9 (2) ◽  
pp. 295-311 ◽  
Author(s):  
Sergey Golubok
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Criminal Proceedings ◽  
Human Right ◽  
Personal Liberty ◽  
International Criminal Tribunals ◽  
The Right

AbstractThis article analyses nascent case law of the International Criminal Court on provisional detention at the investigation stage and in the course of trial (together referred to as “pre-conviction detention”) vis-à-vis the standards developed in the jurisprudence of the European Court of Human Rights, being a reflection of “internationally recognized human rights” to which the ICC, according to its Statute, must adhere. At least several instances of presumed inconsistencies are detected. It is argued that international criminal tribunals should above all comply with standards set by international human rights law for domestic criminal proceedings, in particular when the most fundamental and basic human right ‐ the right to personal liberty ‐ is affected. Failure to comply entails a serious risk of hazardous fragmentation.

International Criminal Court and Ad Hoc Tribunals

2008 ◽  
pp. 462-478
Author(s):  
Richard Goldstone
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Justice ◽  
Single Model ◽  
Customary International Law ◽  
International Criminal Tribunals

This article discusses contemporary international efforts to consolidate and codify significant portions of existing customary international law. It studies the ad hoc tribunals of the UN and pinpoints the successes and failures of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda. The ‘completion strategy’ of both international criminal tribunals is discussed. The article also covers the creation of ‘mixed’ courts and a single model for international criminal justice, namely the International Criminal Court.

Why Do Individuals Surrender to the International Criminal Tribunals?

2015 ◽  
Vol 15 (5) ◽  
pp. 926-948 ◽  
Author(s):  
James David Meernik
Keyword(s):  
Expected Utility ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Courts ◽  
International Criminal Tribunals ◽  
International Tribunals ◽  
Significant Support

Most observers of the International Criminal Court (icc), as well as the several ad hoc tribunals have argued that one of the greatest challenges facing these institutions is their lack of power to enforce their indictments and apprehend suspects. In view of the justifiable concern with the ability of international courts to secure the detention of suspects, it is rather remarkable that nearly one-third of those indicted by the most successful ad hoc tribunals (icty, ictr, scsl) and the icc have surrendered. I offer a theory of surrender that centres on those factors that tend to minimise the costs of surrender and enhance its benefits to explain this phenomenon. I demonstrate how international tribunals and other actors can manipulate the parameters of this calculation and encourage surrender by individuals whose expected utility for surrender is not minimal, but movable. The analysis provides significant support for the minimisation and benefit enhancement model of surrender.

scholarly journals Divided We Stand? The AD HOC Tribunals and the CEE Region

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 240-244
Author(s):  
Veronika Bílková
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
Central And Eastern Europe ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Justice ◽  
International Criminal Tribunals ◽  
Un Security Council ◽  
The Military

After WWII, countries of Central and Eastern Europe (CEE) actively backed the establishment of the military tribunals in Nuremberg and Tokyo. In the early 1990s, when the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were created by the UN Security Council, the CEE countries again lent uniform, albeit largely rhetorical support to these institutions. A quarter of a century later, this uniformity seems to be gone. While the CEE countries continue to express belief in international criminal justice, they no longer agree with each other on whether this justice has actually been served by the ad hoctribunals. The diverging views on the achievements of the ICTY and ICTR might also partly account for the differences in the approach to the permanent International Criminal Court (ICC), though the grounds for these differences are more complex.

scholarly journals Between Pragmatism and Normativity: Legal Standards for Issuing Subpoenas and Witnesses Summonses in International Criminal Procedure

2017 ◽  
Vol 17 (1) ◽  
pp. 135-160
Author(s):  
Maria Pichou
Keyword(s):  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
Discretionary Power ◽  
Witness Testimony ◽  
Legal Standards ◽  
Procedural Law ◽  
International Criminal Tribunals ◽  
Legal Standard

The article analyses the criteria that the international criminal tribunals developed to obtain additional evidence through witness testimony. It systemizes the legal standards of the ad hoc tribunals on subpoenas’ requests and reviews the International Criminal Court (icc) stance on witness summonses. After defining the types of subpoenas and the different tests applied by the courts, the article examines the courts’ discretionary power in the light of the fair trial standard and the appellate standard for such discretionary decisions. The analysis shows that when the tribunal had to adjudicate a request to compel a witness to appear, it adapted the legal standard by considering the type and the object of the subpoena, the witness and the court’s role and mandate. The icc iterated that this power to compel the appearance of witnesses constitutes a customary rule of international criminal procedural law. The article maps the content of this rule.

The Settlement of Disputes Concerning States Arising From the Application of the Statute of the International Criminal Court: Balancing Sovereignty and the Need for an Effective and Independent ICC

2007 ◽  
Vol 7 (1) ◽  
pp. 1-43
Author(s):  
Juan Carlos Ochoa S.
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
Settlement Of Disputes ◽  
The Relationship

AbstractThe tension between State sovereignty and the need of international criminal tribunals to have sufficient powers for functioning effectively and independently permeates the provisions on the settlement of disputes contained within the ICC Statute. In contrast to the Statutes and the case-law of the ad hoc international criminal tribunals, the ICC Statute gives considerable weight to States Party's sovereignty. In particular, the power of the ICC to settle any dispute concerning its judicial functions under Article 119, paragraph 1, of its Statute is weakened in the area of States Party's cooperation where the provisions of Part 9 of the Statute of that court, in addition to grant those States several possibilities for denying requests for cooperation, remain to a large extent ambiguous as to whether the ICC can scrutinise the grounds for such denials. Yet, it is submitted that the ICC Statute as a whole provides the ICC with sufficient bases to assert such a power. This contribution also casts some light on the relationship between the ICC and States non-party to its Statute from the perspective of the rules on dispute settlement laid down in that international instrument and general international law.

International Criminal Court and Ad Hoc Tribunals

2018 ◽  
pp. 566-582
Author(s):  
Richard Goldstone
Keyword(s):  
World War Ii ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
East Timor ◽  
Criminal Courts ◽  
World War ◽  
International Criminal Tribunals ◽  
War Criminals

This chapter traces the growth of international criminal courts since World War II. The trials of Nazi war criminals at Nuremberg in 1944 led, after a lapse of almost half a century, to decisions by the UN Security Council to establish two ad hoc international criminal tribunals for the former Yugoslavia (1993) and for Rwanda (1994). UN-mandated courts followed in East Timor, Kosovo, and Bosnia and Herzegovina; and by state-requested courts, so-called ‘mixed’ or ‘hybrid’ criminal tribunals, in partnership with the UN, in Sierra Leone, Cambodia, and Lebanon. In terms of the Rome Statute of 1998, the International Criminal Court became effective in July 2002 and will likely become the only international criminal court.

Sign in / Sign up

Export Citation Format

Share Document