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Witness Proofing in International Criminal Tribunals: Response to Ambos

Published online by Cambridge University Press:  01 December 2008

Abstract

This article examines the analytical framework and key arguments used by K. Ambos to conclude that witness proofing is neither a legally permissible nor necessary useful practice before the ICC in his reply to ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’. Contrary to Ambos, the article argues that witness proofing cannot be both acceptable at the UN international criminal tribunals and per se inappropriate at the ICC, given the ICC's procedural regime allowing for trials to be conducted in a form almost identical to those of the UN tribunals. A related argument is that the practice of witness proofing is not prohibited in the law governing the ICC, even if not provided for. Further arguments conclude that reliance upon spontaneity of a witness in court as a guarantee of reliability is misplaced, that the merits of national practices are irrelevant to the overall analysis, and that international judges are competent to manage the negligible risks associated with witness proofing.

Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Tribunals
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1 K. Ambos, ‘“Witness Proofing” before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’, in this issue.

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

3 Ambos, supra note 1, section 2.

4 Ibid. The ad hoc tribunals are nominally more adversarial in form than the ICC, primarily with regard to the pre-trial proceedings. Proofing, however, is associated with trial. See infra, nn. 6–7 and accompanying text.

5 Ambos, supra note 1, section 2.

6 See Rome Statute, Art. 64(8)(b) (‘At the trial, the presiding judge may give directions for the conduct of proceedings . . .’); Rules of Procedure and Evidence (RPE), Rule 140 (noting that if the presiding judge does not issue directions pursuant to Art. 64(8)(b) ‘the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber’, and that, where no such agreement is reached, ‘the Presiding Judge shall issue directions) (emphasis added).

7 For example, the prosecution will present all its evidence at the beginning of the trial, followed by the defence. Rebuttal and rejoinder are subject to the discretion of the trial chamber. The party presenting a witness examines the witness first and the scope of that examination should be limited to matters relevant to the case. Leading questions are not permitted except where the witness is providing background or undisputed evidence. Cross-examination (called subsequent questioning) shall follow, using leading questions. Re-examination should, as a rule, be permitted, and limited to issues arising out of cross-examination. See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04–01/06, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, 13 December 2007, 1–2 (citing ICC-01/04-01/06-953, Prosecution's submission regarding the subjects that require early determination; status of the evidence heard by the Pre-Trial Chamber; status of the decisions of the Pre-Trial Chamber, and manner in which evidence shall be submitted, 12 September 2007, paras. 28–38 [Prosecution's Lubanga Submission] and ICC-01/04–01/06–1033, Conclusions de la Défence sur des questions devant être tranchées à un stade précoce de la procédure, 16 November 2007, paras. 45–46).

8 Ambos, supra note 1, section 4.c.i.

9 We recognize that the Lubanga trial, currently scheduled to begin in June 2008, should be well under way, if not completed, by the time of publication.

10 See supra note 7.

11 RPE, Rule 140(2); see also Rome Statute, Art. 67.

12 Even should a trial chamber adopt a less ‘adversarial’ format, the parties will always have the right to examine witnesses, and it is difficult to conceive of any trial before the ICC in which the ability to cross-examine a witness effectively would be of no benefit to the accused.

13 Ambos, supra note 1, section 4.a.

14 See ICC-01/04–01/06-T-58-ENG, 57–58 (30 October 2007).

15 Karemaker et al., supra note 2, at 684.

16 Ambos, supra note 1, section 4.b.

17 See Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Admission of Tab 19 of Binder Produced in Connection with Appearance of Witness Maxwell Nkole, Trial Chamber, 13 September 2004, para. 8 (describing authenticity as ‘the document is actually what the moving party purports it to be’).

18 See Prosecution's Lubanga Submission, supra note 7, para. 28 (arguing that, from ‘the presence and construct of Article 70(1)(c) . . . pre-testimony meetings, or proofing, with a witness by a party is not prohibited ab initio, [but] rather is regulated to prohibit witness and evidence tampering’).

19 They disagreed, for example, on whether proofing was an established practice at the ad hoc tribunals. Whilst the Pre-trial Chamber found that this submission was ‘unsupported’ (para. 33), the trial chamber unequivocally acknowledged it (para. 43). In another disagreement, the Pre-trial Chamber determined that proofing is prohibited in ‘Brazil, Spain, France, Belgium, Germany, Scotland, Ghana, England and Wales and Australia’ (para. 37), whilst the trial chamber cited Australia as an example where proofing as submitted by the prosecution was allowed, and nuanced the Pre-trial Chamber's view of the law of England and Wales (paras. 40, 42).

20 Nothing in either decision supports a conclusion that either the ICC Statute or Rules prohibits proofing. The trial chamber agreed with the Pre-trial Chamber ‘that the concept of ‘witness proofing’ as advanced by the prosecution could not be found within the Statute or Rules . . . and further [found] no provision in the texts to justify the practice’. Lubanga Trial Decision, supra note 7, at paras. 35–36. In fact, had either chamber found that the Statute or rules prohibited proofing, it could not have dealt with the secondary sources of law in Article 21(b) or (c).

21 Lubanga Trial Decision, supra note 7, paras. 51–52. The opinions expressed in these paragraphs (expressly characterized as such by the trial chamber) have no basis in law, yet they seem to articulate determining factors for the trial chamber's decision to prohibit proofing.

22 Ambos, supra note 1, section 4.c.ii.

24 See, e.g., Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Appeal Judgement, 21 July 2000, para. 197 (recognizing a presumption that judges are impartial); Prosecutor v. Blagojević and Jokić, Case No. IT-02–60-A, Appeal Judgement, 9 May 2007, para. 23 (noting that counsel is presumed to be competent); Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, para. 183 (presuming that the prosecution carries out its function in good faith).

25 Karemaker et al., supra note 2, n. 92.

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