scholarly journals Strengthening the Evaluation of Evidence in International Criminal Trials

2017 ◽  
Vol 17 (4) ◽  
pp. 682-702 ◽  
Author(s):  
Yvonne McDermott
Keyword(s):  
Cultural Differences ◽  
Financial Incentives ◽  
International Criminal ◽  
Criminal Trials ◽  
International Criminal Tribunals ◽  
Differences Of Opinion ◽  
Potential Applicability ◽  
Fact Finding ◽  
Evaluation Of Evidence ◽  
International Criminal Trials

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.

s.V Modalities, Ch.19 Epistemological Controversies and Evaluation of Evidence in International Criminal Trials

2020 ◽  
Author(s):  
Klamberg Mark
Keyword(s):  
International Criminal ◽  
Alternative Hypothesis ◽  
Common Law ◽  
Criminal Court ◽  
Free Access ◽  
Criminal Trials ◽  
High Profile ◽  
Fact Finding ◽  
Evaluation Of Evidence ◽  
International Criminal Trials

This chapter deals with the epistemological challenges posed by the evaluation of evidence in international trials. Unlike common-law juries, who are insulated from evidence deemed by a judge to be potentially irrelevant or prejudicial, international judges receive free access to all evidence in order to fulfill their role as fact-finders. This chapter suggests how judges should undertake that fact-finding obligation. It gives reference to an ‘alternative hypothesis’ standard of decision for evaluating the massive amounts of evidence presented at trial. Given the high-profile collapse of several recent cases at the International Criminal Court due to lack of evidence presented at trial, this chapter can help bring back standards of decision and other evidentiary issues to the center of the discussion.

scholarly journals Analysis of evidence in international criminal trials using Bayesian Belief Networks

2017 ◽  
Vol 16 (2-3) ◽  
pp. 111-129 ◽  
Author(s):  
Yvonne McDermott ◽  
Colin Aitken
Keyword(s):  
Graphical Models ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Bayesian Belief Networks ◽  
Practical Case ◽  
Criminal Trials ◽  
Bayes Nets ◽  
International Criminal Tribunals ◽  
Fact Finding ◽  
International Criminal Trials

Abstract This article demonstrates how different actors in international criminal trials could utilise Bayesian Networks (‘Bayes Nets’), which are graphical models of the probabilistic relationships between hypotheses and pieces of evidence. We argue that Bayes Nets are potentially useful in both the examination of international criminal judgments and the processes of trial preparation and fact-finding before international criminal tribunals. With the use of a practical case study based on a completed case from the International Criminal Tribunal for the former Yugoslavia (ICTY), we illustrate how Bayes Nets could be used by international criminal tribunals to strengthen judges' confidence in their findings, to assist lawyers in preparing for trial, and to provide a tool for the assessment of international criminal tribunals' factual findings.

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

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 ◽  
International Criminal Tribunals ◽  
Civil Law System ◽  
Real Challenge ◽  
International Criminal Trials

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.

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

2012 ◽  
Vol 1 (1) ◽  
pp. 73-101 ◽  
Author(s):  
Mark Findlay ◽  
Sylvia Ngane
Keyword(s):  
International Criminal ◽  
Truth Telling ◽  
Witness Testimony ◽  
Criminal Trials ◽  
Judicial Decision Making ◽  
International Criminal Tribunals ◽  
Empirical Truth ◽  
Judicial Determinations ◽  
Truth Finding ◽  
International Criminal Trials

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.

‘We Will Not Go Away’

2020 ◽  
pp. 325-339
Author(s):  
Stephen Cody ◽  
Eric Stover
Keyword(s):  
International Criminal ◽  
International Justice ◽  
Criminal Trials ◽  
Criminal Investigations ◽  
Physical Evidence ◽  
International Criminal Tribunals ◽  
Retributive Punishment ◽  
Victim Participation ◽  
International Criminal Trials

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.

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

2008 ◽  
Vol 21 (3) ◽  
pp. 683-698 ◽  
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 ◽  
International Criminal Tribunals ◽  
International Criminal Trials

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.

Witness Protection

2020 ◽  
pp. 381-390
Author(s):  
Nancy Amoury Combs
Keyword(s):  
Human Resources ◽  
International Criminal ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
Criminal Cases ◽  
Witness Testimony ◽  
Criminal Trials ◽  
International Criminal Tribunals ◽  
Tremendous Importance ◽  
International Criminal Trials

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.

The ECCC’s Approach to Evidence and Proof

2020 ◽  
Vol 18 (3) ◽  
pp. 747-764
Author(s):  
Yvonne McDermott
Keyword(s):  
International Criminal ◽  
Probative Value ◽  
International Criminal Tribunals ◽  
Key Issues ◽  
Fact Finding ◽  
Evidence And Proof ◽  
Evaluation Of Evidence ◽  
Holistic Manner

Abstract The Extraordinary Chambers in the Courts of Cambodia (ECCC) has made normative decisions as to the probative value of different categories of evidence and the manner in which the evidentiary record should be assessed. Defying expectations that the ECCC’s inquisitorial model would render it quite unique in relation to matters of evidence and proof, this article argues that many of the key epistemological debates witnessed before other international criminal tribunals have also seeped into the practice of the ECCC. Indeed, an analysis of its practice shows that there are several commonalities in approach between the ECCC and the principal contemporary international criminal tribunals on such key issues as whether the evaluation of evidence should be carried out in a piecemeal or a holistic manner, and the weight to be given to hearsay and other categories of evidence. Despite an enormously challenging fact-finding environment and inconsistencies in practice, the ECCC has developed an admirably thorough approach to the evaluation of evidence.

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