Witness Protection

Tremendous Importance ◽

This chapter focuses on witness protection. Witness protection has long been a contentious and expensive component of domestic criminal trials, and it is an even more contentious and expensive component of international criminal trials of genocide, war crimes, and crimes against humanity. In many international criminal cases, the prosecution's case is based exclusively or almost exclusively on witness testimony. Thus, if witnesses are not willing to testify, then the prosecution's case will necessarily fail. Witnesses before international criminal tribunals are sometimes twice victimized, first by the trauma they lived through and second by dangers associated with participating in international trials. Given the tremendous importance of witnesses to international criminal cases and given the ease with which defendants can credibly threaten harm to those witnesses, one might assume that the international criminal tribunals do everything necessary to provide witnesses with whatever level of protection they need in order to assure their safety and thereby enable them to testify. The international criminal tribunals do spend vast sums—in both financial and human resources—to provide top-quality witness protection, but there are countervailing considerations in the form of fairness to defendants that place limits on the efforts they can and should undertake.

Sham of the Moral Court? Testimony Sold as the Spoils of War

Global Journal of Comparative Law ◽

10.1163/2211906x-00101003 ◽

2012 ◽

Vol 1 (1) ◽

pp. 73-101 ◽

Cited By ~ 3

Author(s):

Mark Findlay ◽

Sylvia Ngane

Keyword(s):

International Criminal ◽

Truth Telling ◽

Witness Testimony ◽

Criminal Trials ◽

Judicial Decision Making ◽

Empirical Truth ◽

Judicial Determinations ◽

Truth Finding ◽

This paper analyses the critical influences on witness-based truth-telling for judicial decision-making in the international criminal tribunals. The judicial fixation on witness testimony reflects the weight and legitimacy given to personal testimony before international courts. This weight must be balanced by the awareness that a witness may provide false testimony intentionally, or may be coaxed by third parties to provide such testimony, as has been evidenced recently before the ICC. If witness testimony is tainted then its capacity to endorse the truth-finding function of the court is compromised. As a consequence the ability to assert that the tribunal is a ‘moral court’ based on empirical truth in such circumstances is jeopardized. The nexus between witness testimony, truth, the morality of judicial determinations, and the legitimacy this affords is explored in what follows. We question whether simple assertions that witness testimony, tested through adversarial examination, produces truth and resultant morality, are all they seem. The analysis also critiques the forensic reality of witness testimony before the international tribunals. Ultimately the paper suggests that while truthful testimony is crucial if international criminal trials are to produce legitimate judicial determinations, the naïve claim to a moral court as a consequence of tested witness testimony is problematic at least and unsustainable at best.

It is all in the Process: Reflections on the Relation between International Criminal Trials and International Humanitarian Law

Nordic Journal of International Law ◽

10.1163/090273509x12506922107118 ◽

2009 ◽

Vol 78 (4) ◽

pp. 469-480

Author(s):

Frederik Harhoff

Keyword(s):

International Criminal ◽

Substantial Contribution ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Criminal Trials ◽

Law System ◽

Civil Law System ◽

Real Challenge ◽

AbstractWhile much attention has been drawn all along to the substantial contribution by the jurisprudence of the international criminal tribunals to the development of international humanitarian law, the criminal legal procedural aspect of the tribunals' jurisprudence has been less prominent. The present article seeks to highlight the material importance of this much neglected aspect of the tribunal's jurisprudence. It illustrates the delicate interplay between the common law system and the civil law system and demonstrates how the latter is better suited to control very complex trials. It also explains why international criminal trials are inherently lengthier than criminal trials in domestic courts. Ultimately, the author argues, it is not sufficient to just agree on the crimes and how to define them; the real challenge lies in how you apply the evidence to these definitions.

The Problem of Witness Interference before International Criminal Tribunals

International Criminal Law Review ◽

10.1163/15718123-01504005 ◽

2015 ◽

Vol 15 (4) ◽

pp. 700-732 ◽

Cited By ~ 1

Author(s):

Anne-Marie de Brouwer

Keyword(s):

International Criminal ◽

Country Of Origin ◽

War Crimes ◽

Crimes Against Humanity ◽

Protection Orders ◽

International Crimes ◽

International Criminal Tribunals

Victims of international crimes, such as genocide, crimes against humanity and war crimes, are considered crucial in establishing the evidence in cases before international criminal tribunals. Yet, due to the geographic, political, ethnic or religious circumstances in the country of origin, the nature of the crimes concerned and the nature of the victims’ or accuseds’ involvement in the crimes, international cases also bring with them significant risks for victims/witnesses and challenges for tribunals in protecting them. At times, individuals have disclosed identifying information of victims/witnesses in violation of protection orders of the tribunal, which has led to threats, intimidations and even murders, and ultimately, in a number of cases, the unwillingness of victims/witnesses to testify. Although the tribunals have measures at their disposal to sanction individuals breaching protection orders, the question remains how big the problem of witness interference really is and how to address this issue adequately.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

SSRN Electronic Journal ◽

10.2139/ssrn.3950514 ◽

2021 ◽

Author(s):

Karen Richmond ◽

Sebastiano Antonio Piccolo

Keyword(s):

International Criminal ◽

Expert Witness ◽

Witness Testimony ◽

Criminal Trials ◽

Expert Witness Testimony ◽

Trying Violations of Human Rights in International Criminal Tribunals

Standing Up for Justice ◽

10.1093/oso/9780198863434.003.0005 ◽

2021 ◽

pp. 103-115

Author(s):

Theodor Meron

Keyword(s):

Human Rights ◽

International Criminal ◽

War Crimes ◽

The Other ◽

Crimes Against Humanity ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Geneva Conventions

This chapter details the ways in which international criminal tribunals such as the ICTY have contributed to human rights law and protections. In construing the material elements of crimes under international humanitarian law, international criminal tribunals have had recourse to human rights law and jurisprudence, thereby strengthening human rights law and opening new avenues for its penal enforcement. The beginnings of these developments can be traced, first, to the drafting of crimes against humanity clauses in the Nuremberg Charter and, second, to the drafting of Common Article 3 of the Geneva Conventions. The tribunals have also made immense contributions to strengthening the proscriptions of rape as war crimes, crimes against humanity, and genocidal acts. With respect to persecution, the ICTY held that persecution is the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited as crimes against humanity.

‘We Will Not Go Away’

The President on Trial ◽

10.1093/oso/9780198858621.003.0037 ◽

2020 ◽

pp. 325-339

Author(s):

Stephen Cody ◽

Eric Stover

Keyword(s):

International Criminal ◽

International Justice ◽

Criminal Trials ◽

Criminal Investigations ◽

Physical Evidence ◽

Retributive Punishment ◽

Victim Participation ◽

This chapter studies the participation of victims in international criminal tribunals. Victim participation in international criminal trials has been uneven. Historically, prosecutors often have side-lined victim testimony in favour of documentary or physical evidence or assumed that justice for victims equated to retributive punishment of offenders. In recent decades, however, victims have become more active contributors in criminal investigations and proceedings. Victim participation at all stages of the Hissène Habré trial, for example, suggests a growing trend towards greater victim inclusion in international and national criminal trials. As such, it is incumbent on court personnel, as well as international justice researchers and practitioners, to better understand the diverse needs of victims and how they can be best supported before, during, and after trials.

Strengthening the Evaluation of Evidence in International Criminal Trials

International Criminal Law Review ◽

10.1163/15718123-01704005 ◽

2017 ◽

Vol 17 (4) ◽

pp. 682-702 ◽

Cited By ~ 1

Author(s):

Yvonne McDermott

Keyword(s):

Cultural Differences ◽

Financial Incentives ◽

International Criminal ◽

Criminal Trials ◽

Differences Of Opinion ◽

Potential Applicability ◽

Fact Finding ◽

Evaluation Of Evidence ◽

Recent studies have highlighted instances where findings of fact reached by international criminal tribunals appear not to be adequately supported by the evidence. These works have typically focused on evidential issues, such as witnesses’ fading memories, cultural differences, and more sinister aspects (such as financial incentives) as the root causes for such discrepancies. However, this article argues that these accounts are incomplete, as they do not recognise difficulties arising from the judicial evaluation of, and reasoning on, the evidential record, which poses potentially insurmountable challenges to reliable fact-finding by international criminal tribunals. This article highlights recent differences of opinion between judges on how evidence should be weighed and evaluated. It points to some issues arising from the enormity of the fact-finding role in international criminal trials and the procedural framework embraced by the international criminal tribunals. It discusses tools to assist fact-finding, and their potential applicability to international criminal trials.

Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence

Leiden Journal of International Law ◽

10.1017/s0922156508005256 ◽

2008 ◽

Vol 21 (3) ◽

pp. 683-698 ◽

Cited By ~ 8

Author(s):

RUBEN KAREMAKER ◽

B. DON TAYLOR ◽

THOMAS WAYDE PITTMAN

Keyword(s):

Critical Analysis ◽

International Criminal ◽

Early Stage ◽

Criminal Procedure ◽

Trial Chamber ◽

Criminal Trial ◽

Criminal Trials ◽

Trial Process ◽

AbstractWitness proofing – or preparation – is an adjunct of the adversarial criminal trial process. It is also a common practice at the UN international criminal tribunals, where it has been repeatedly challenged, analysed, and endorsed. Recently, a trial chamber at the ICC prohibited the prosecutor from proofing witnesses, seemingly calling upon the institution, at an early stage, to break with the established practice of proofing at the UN international criminal tribunals. This article examines witness proofing in international criminal procedure with the aim of describing and weighing its relative merits, and arguing that proofing – as practised at the UN international criminal tribunals – appears to be a better modality for enhancing the efficiency, integrity, and legitimacy of the truth-seeking function of international criminal trials than does prohibiting the practice.

The Good Deeds of International Criminal Defendants

Leiden Journal of International Law ◽

10.1017/s0922156512000398 ◽

2012 ◽

Vol 25 (3) ◽

pp. 799-813 ◽

Cited By ~ 1

Author(s):

JEAN GALBRAITH

Keyword(s):

Criminal Law ◽

International Criminal ◽

International Criminal Tribunal ◽

War Crimes ◽

The Other ◽

International Criminal Law ◽

Former Yugoslavia ◽

Crimes Against Humanity ◽

Good Deeds

AbstractInternational criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

International Criminal Law Review ◽

10.1163/15718123-bja10117 ◽

2021 ◽

pp. 1-28

Author(s):

Karen McGregor Richmond ◽

Sebastiano Antonio Piccolo

Keyword(s):

International Criminal ◽

Expert Witness ◽

Theoretical Perspective ◽

Witness Testimony ◽

Criminal Trials ◽

Expert Witness Testimony ◽

Open Court ◽

The Individual ◽

Law Of Evidence ◽

Abstract It is a fundamental tenet of the law of evidence, spanning all jurisdictions, that witness testimony should ideally be delivered in open court by the individual who observed the event in question, or by the expert whose technical knowledge is relied upon. A notable exception to this principle has emerged in the field of international criminal justice, where courts and tribunals may allow ‘summarising witnesses’ to present a summation of witness testimony. In the case of Ayyash et al., the Special Tribunal for Lebanon extended the principle, allowing voluminous expert opinion evidence to be presented in factual summation. This article analyses such approaches, utilising doctrinal methods alongside empirical Wigmorean analysis, to assess the probity of these sui generis practices. The results are placed in legal and theoretical perspective, demonstrating that international courts and tribunals are departing from an overarching obligation to integrate international and domestic standards in respect of expert testimony.