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

  • WAYNE JORDASH

Abstract

Witness 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.

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1 Prosecutor v. Lubanga, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Case No. ICC-01/04-01/06, T.Ch.I, 30 November 2007 (hereinafter Lubanga Trial Decision).

2 Prosecutor v. Lubanga, Decision on the Practices of Witness Familiarisation and Witness Proofing, Case No. ICC-01/04-01/06, PTCI.Ch.I, 8 November 2006 (hereinafter Lubanga Pre-Trial Decision).

3 Prosecutor v. Milutinović, Sainović, Odjanić, Pavković, Lazarević, and Lukić, Decision on Ojdanić Motion to Prohibit Witness Proofing, Case No. IT-05-87-T, Trial Chamber III, 12 December 2006 (hereinafter Milutinović Trial Decision).

4 Ibid., at paras. 16 and 22.

5 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Defence Motions to Prohibit Witness Proofing, Case No. ICTR-98-44-T, 15 December 2006 (hereinafter Karemera Trial Decision).

6 Ibid., at para. 8.

7 Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on Interlocutory Appeal Regarding Witness Proofing, Case No. ICTR-98-44-AR73.8, 11 May 2007 (hereinafter Karemera Appeal Decision) at para. 8.

8 Ibid., at para. 9.

9 Lubanga Trial Decision, supra note 1, at para. 8.

10 Ibid., at para. 43.

11 Ibid., at para. 44.

12 Ibid., at para. 47.

13 Ibid., at para. 51.

14 Ibid., at para. 52.

15 Prosecutor v. Limaj, Decision on Defence Motion on Prosecution Practice of ‘Proofing’ Witnesses, Case No. IT-03-66-T, 10 December 2004 (hereinafter Limaj Trial Decision), at para. 2.

16 Milutinović Trial Decision, supra note 3, at para. 16.

17 Karemera Trial Decision, supra note 5 at paras. 11, 12, 15.

18 Karemera Trial Decision, supra note 5.

19 Prosecutor v. Haradinaj, Balaj and Brahimaj, Decision on Defence Request for Audio-Recording of Prosecution Witness Proofing Sessions, Case No. IT-04-84-T, 23 May 2007 (hereinafter Haradinaj Trial Decision), at para. 8, quoting from the prosecution's pleadings underlying the Milutinović Trial Decision, supra note 3: Prosecution Response to General Ojdanić's Motion to Prohibit Witness Proofing, 29 November 2006, n. 2 (hereinafter Milutinović Prosecution Response).

20 Karemera Trial Decision, supra note 5, at para. 15.

21 Milutinović Prosecution Response, supra note 19.

22 Lubanga Pre-Trial Decision, supra note 2, at para. 17.

23 Lubanga Trial Decision, supra note 1, at para. 8.

24 Prosecution Response to Haradinaj Submissions on the Procedure for the Proofing of Prosecution Witnesses, 21 March 2007, at para. 22.

26 Ibid., at para. 44 and Annex: Proofing Guidelines.

27 Ibid., at para. 44.

28 Ibid., at para. 6 (‘Witness proofing cannot include informing the witness about the specific substance of an answer they are expected to give during their testimony’).

29 Prosecutor v. Limaj et al., Prosecution's Response to Defence Motion on Prosecution Practice of Proofing Witnesses, 3 December 2004 (hereinafter Limaj Prosecution Response) (emphasis added).

30 Lubanga Pre-Trial Decision, supra note 2, at para. 32.

31 Limaj Prosecution Response, supra note 29.

33 Milutinović Trial Decision, supra note 3, at para. 6.

34 Ibid., at para.16.

35 Karemera Trial Decision, supra note 5, at para. 23.

36 The Appeals Chamber, in endorsing the Trial Chamber's definition, noted that their approach was ‘consistent with the approach sanctioned by the Appeals Chamber in the Gacumbitsi Appeal Judgement’ (Karemera Appeal Decision, supra note 7, at para. 9). The description given in the Gacumbitsi Appeal Judgement stated that ‘It is not inappropriate per se for the parties to discuss the content of testimony and witness statements with their witnesses, unless they attempt to influence that content in ways that shade or distort the truth’ (Prosecutor v. Gacumbitsi, Appeal Judgement, Case No. ICTR-2001-64-A, Judgement, 7 July 2006, at para. 74.

37 The author led the Sesay defence team who were responsible for the requests.

38 See, e.g., Prosecutor v. Sesay, Kallon and Gbao, Defence Reply to the Prosecution Response to the Defence Requesting the Exclusion of Paragraphs 1, 2, 3, 11 and 14 of the Additional Information Provided by Witness TF1-117 Dated 25th, 26th, 27th and 28th October 2005, Case No. SCSL-04-15-T, 12 January 2006, at paras. 4–11.

39 Prosecutor v. Sesay, Kallon and Gbao, Defence Motion Requesting the Exclusion of Evidence arising from the Additional Information Provided by Witness TF1-168 (14th, 21st, January and 4th February 2006, TF1-165 (6th, 7th February 2006) and TF1–041 (9th, 10th, 13th February 2006), Case No. SCSL-04-15-T, 23 February 2006, at paras. 1 and 14.

40 Prosecutor v. Sesay, Kallon and Gbao, Defence Motion Seeking a Stay of the Indictment and Dismissal of all Supplemental Charges (Prosecution's Abuse of Process and/or Failure to Investigate Diligently), Case No. SCSL-04-15-T, 24 April 2007, at para. 14.

41 Ibid., at para. 15.

42 Ibid., Prosecution Response, at para. 13.

43 Prosecutor v. Sesay, Kallon and Gbao, Decision on Defence Motion Seeking a Stay of the Indictment and Dismissal of all Supplemental Charges (Prosecution's Abuse of Process and/or Failure to Investigate Diligently), Case No. SCSL-04-15-T, 24 April 2007, (hereinafter Sesay Decision on Abuse Motion), at para. 7.

44 For example: Prosecutor v. Sesay, Kallon and Gbao, Prosecution Response to Sesay Defence Application for Leave to Appeal the Decision of 1st August 2006, Case No. SCSL-04-15-T, 23 August 2006, at para. 7.

45 See Lubanga Pre-Trial Decision, supra note 2, at para. 36 and n. 40, referring to M. Schrag (Senior Trial Attorney at the ICTY Office of the Prosecution between 1994 and 1995), ‘Lessons Learned from ICTY Experience’, (2004) 2 Journal of International Criminal Justice 427, at 432, n. 9.

46 Karemera Appeal Decision, supra note 7, at para. 10.

47 The Senior Prosecution Trial Attorney at the SCSL, Kevin Taverner, confirmed this obvious point, admitting that proofing sessions at the SCSL were used to rectify substandard pre-trial investigations: ‘All we got from the investigation was a collection of statements – some of which were useful, most of which had to be re-done . . . Really all we ended up with were names of people and the potential statement’ (P. Van Tuyl, Effective, Efficient, and Fair? An Enquiry into the Investigative Practices of the Office of the Prosecutor at the Special Court for Sierra Leone (2008), para. 44).

48 K. Ambos, ‘Witness Proofing in International Criminal Tribunals: A Reply to Karemaker, Taylor, and Pittman’, (2008) 21 LJIL 911, at para. 4.a.

49 Lubanga Pre-Trial Decision, supra note 2, at para. 39.

50 R. v. Momodou, (2005) EWCA Crim. 177, at para. 61.

51 R. Karemaker, B. D. Taylor III, and T. Pittman, ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’, (2008) 21 LJIL 683, section 5.2.3.

52 Shargel, G. L., ‘Federal Evidence Rule 608(B): Gateway to the Minefield of Witness Preparation’, (2007) 76 Fordham Law Review 1263, at 1271.

53 Ambos, supra note 48, at para. 4.b.

54 R. Karemaker, B. D. Taylor III, and T. Pittman, ‘Witness Proofing in International Criminal Tribunals: Response to Ambos’, (2008) 21 LJIL 917, 2.

55 Ambos, supra note 48, at para. 4.a.

56 Karemera Trial Decision, supra note 5.

57 Milutinović Trial Decision, supra note 3, at para. 6

58 Ibid., at para. 16.

59 Limaj Trial Decision, supra note 15.

60 Karemera Trial Decision, supra note 5, at paras. 10 and 15.

61 Ibid., at para. 16.

62 Karemera Appeal Decision, supra note 7 at para. 9.

63 Prosecutor v. Brima, Kamara, and Kanu, Decision on Objection to Question Put by Defence in Cross Examination of Witness TF1–227, Case No. SCSL-04–16-T, 15 June 2005, at para. 20.

64 See also Prosecutor v. Blaškić, Case No. IT-95-14-T, Transcripts, 21 August 1997, at paras. 1812–1813 and Prosecutor v. Bizimungu et al., Case ICTR-00-56-T, Decision on Bizimungu's Urgent Motion Pursuant to Rule 73 to Deny the Prosecutor's Objection Raised during the 3 March Hearing, 1 April 2005.

65 Karemera Appeal Decision, supra note 7, at para. 13.

66 Prosecutor v. Tadić, Appeal Vujin Contempt 31 January 2000, Case No. IT-94-1-AR77.

67 ICC Statute, Art. 70(1).

68 Limaj Trial Decision, supra note 15, at para. 2.

69 See, e.g., Prosecutor v. André Rwamakuba, Decision on the Defence Motion Regarding Will-Say Statements (TC), Case No. ICTR-98-44C-T, 14 July 2005, at para. 7.

70 For example: Milutinović Trial Decision, supra note 3, at para. 23 and fn. 42, quoting extensively from various comments made by Judge Bonomy at the ICTY including, ‘I've said it before, I'll say it again: it seems to me a crazy system, this proofing days before a witness is supposed to give evidence when there has been a lengthy pre-trial phase in the case.’

71 Milutinović Trial Decision, supra note 3, at para. 21.

72 Limaj Trial Decision, supra note 15, at para. 2.

73 See, e.g., Prosecutor v. Orić, Case No. IT-03-68-T, Transcript, 2 December 2004, at para. 2371, per Judge Agius, ‘Yes, that [late disclosure of evidence through proofing notes] happens. And that's not going to cause an earthquake. That happens in the case of many, or most witnesses, I would say.’ See also Prosecutor v. Prlić, Case No. IT-04-74/T, Transcript 22 March 2007, at paras. 16149–16150: discussions about the general practice at the ICTY, per defence lawyer: ‘our primary concern is that proofing sessions, especially with 92 ter witnesses, are turning into whole new statements, and what the prosecution is doing is, now that they have some evidence that has come in and they want to bolster their case, they're using the opportunity to take an entirely new statement.’ In response, the prosecution lawyer, inter alia, stated, ‘if I was designing the system to start all over again, I would probably do some things differently myself . . . these witnesses, again for better or worse, I make no justification for it have not been seen for a number of years. They were interviewed in 1998. They were interviewed in 2001. They come in. We meet with them. We talk to them. We take them through their statements . . . I do not think that in the vast majority of instances they represent new statements or something fundamentally new. Usually it's additional – it's an additional detail, it's an additional amplification of something's that's been said.’ Ibid., at paras. 16173–16174.

74 Prosecutor v. Limaj et al., Decision on Joint Defence Motion on Prosecution's Late and Incomplete Disclosure, Case No. IT-03-66-T, 7 June 2005, at paras. 3, 4, and 26,

75 Limaj Trial Decision, supra note 15, at para. 2.

77 Karemera Trial Decision, supra note 5, at para. 11. This assumption was repeated in the Karemera Appeal Decision, supra note 7, at para. 10, wherein the Appeals Chamber suggested that proofing was necessary to avoid putting a party in the position of having to cross-examine a witness ‘cold’ without first knowing what he would say.

78 Prosecutor v. Sesay, Kallon and Gbao, Decision on Defence Motion for the Exclusion of Evidence arising from the Supplemental Statements of Witnesses TF1-113, TF1-108, TF1-330, TF1-041 and TF1-288, Case No. SCSL-04-15-T, 27 February 2006, at para. 11.

79 Sesay Decision on Abuse Motion, supra note 43, at para. 22.

80 Prosecutor v. Blaškić, Decision on Defence Motion Alleging Defects in the Form of the Indictment and Order on Prosecution Motion to Amend the Indictment, Case No. IT-95-14, 4 April 1997, at para. 11. See also Prosecutor v. Nyiramusuhuko, Decision on Defence Motion for Disclosure of Evidence, Case No. ICTR-97-29-T, 1 November 2000, at para. 38.

81 E.g., Prosecutor v. Nyiramusuhuko, Decision on Defence Motion for Disclosure of Evidence, Case No. ICTR-97-29-T, 1 November 2000.

82 See ICTY, ICTR, and SCSL, Rules of Procedure and Evidence, Rule 68.

83 Milutinović Trial Decision, supra note 3, at para. 23 and n. 42, referring to Transcript, 2 November 2006, at para. 5791.

84 Karemaker, Taylor, and Pittman, supra note 51, at 5.2.2.

85 Van Tuyl, supra note 47.

86 Lubanga Pre-Trial Decision, supra note 2, at para. 33.

87 Ibid., at para. 12, and Lubanga Trial Decision, supra note 1, at para. 9.

88 Lubanga Pre-Trial Decision, supra note 2, at paras. 38, 39. See also the latest Code of Conduct for Prosecutors issued in February 2008.

89 Limaj Trial Decision, supra note 10, at para. 2.

90 Lubanga Pre-Trial Decision, supra note 2, at para. 15.

91 Lubanga Trial Decision, supra note 1, at paras. 6, 17, 22, 33.

92 Ibid., at para. 34.

93 Lubanga Trial Decision, supra note 1, at 19.

94 Ibid., at 55.

95 Ibid., at 45.

96 ICC Statute, Art. 54(1).

97 E.g. Prosecutor v. Kupreškić, Judgement, Case No. IT-95-16-A, 23 October 2001, at 114.

* UK lawyer, practising from Doughty Street Chambers, London. The author was the Lead Counsel for Sesay in the ‘RUF’ case at the Special Court for Sierra Leone; Co-Counsel for Stanišić at the International Criminal Tribunal for the former Yugoslavia and Co-counsel for Bagaragaza at the International Criminal Tribunal for Rwanda. The views expressed herein are solely those of the author.

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