The Position of Witnesses Before the International Criminal Court [1 ed.] 9789004301955, 9789004301948

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The Position of Witnesses before the International Criminal Court

International Criminal Law Series Editorial Board Series Editor

M. Cherif Bassiouni (USA/EGYPT)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal; Chicago, USA Kai Ambos (Germany) Judge, District Court, Göttingen; Professor of Law and Head, Department for Foreign and International Criminal Law, Georg August Universität Mahnoush Arsanjani (Iran) Member, Institut de Droit International; former Director, Codification Division, United Nations Office of Legal Affairs Mohamed Chande Othman (Tanzania) Chief Justice, Court of Appeal of Tanzania Eric David (Belgium) Professor of Law, Faculty of Law, Free University of Brussels Mireille Delmas-Marty (France) Professor of Comparative Legal Studies and Internationalisation of Law, Collège de France Adama Dieng (Senegal) UN Secretary-General’s Special Adviser on the Prevention of Genocide; former Registrar, International Criminal Tribunal for Rwanda; former Secretary General, International Commission of Jurists Mark Drumbl (Canada/USA) Class of 1975 Alumni Professor of Law, Director, Transnational Law Institute, Washington and Lee University School of Law Chile Eboe-Osuji (Nigeria) Judge, Trial Division, International Criminal Court; former Legal Adviser to the High Commissioner for Human Rights, Office of the High Commissioner for Human Rights Geoff Gilbert (UK) Professor of Law and Head, School of Law, University of Essex

Philippe Kirsch (Belgium/Canada) Ad hoc Judge, International Court of Justice; former President, International Criminal Court; Ambassador (Ret.) and former Legal Advisor, Ministry of Foreign Affairs of Canada André Klip (The Netherlands) Professor of Law, Department of Criminal Law and Criminology, Faculty of Law, Maastricht University Erkki Kourula (Finland) Judge and President of the Appeals Division, International Criminal Court Motoo Noguchi ( Japan) Legal Adviser, Ministry of Justice of Japan; Visiting Professor of Law, University of Tokyo; former International Judge, Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia Diane Orentlicher (USA) Professor of International Law, Co-Director, Center for Human Rights and Humanitarian Law, Washington College of Law, American University Fausto Pocar (Italy) Judge and former President, International Criminal Tribunal for the Former Yugoslavia; President, International Institute of Humanitarian Law; Professor of International Law Emeritus, University of Milan Leila Nadya Sadat (France/USA) Henry H. Oberschelp Professor of Law, Director, Whitney R. Harris World Law Institute, Washington University School of Law William Schabas (Canada/Ireland) Professor of International Law, Department of Law, Middlesex University; Chairman, Irish Centre for Human Rights, National University of Ireland

Michael Scharf (USA) John Deaver Drinko-Baker & Hostetlier Professor of Law, Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law Ulrich Sieber (Germany) Professor of Criminal Law, Director, Max Plank Institute for Foreign and International Criminal Law, University of Freiburg Göran Sluiter (The Netherlands) Professor of Law, Department of Criminal Law and Criminal Procedure, Faculty of Law, University of Amsterdam Otto Triffterer (Austria) Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Françoise Tulkens (Belgium) Vice-President, European Court of Human Rights Xuimei Wang (China) Professor of International Criminal Law, College for Criminal Law Science, Beijing Normal University; Executive Director, ICC Project Office Christine van den Wyngaert (Belgium) Judge, Trial Division, International Criminal Court; former Judge, International Criminal Tribunal for the Former Yugoslavia; former Ad hoc Judge, International Court of Justice Gert Vermeulen (Belgium) Professor of Criminal Law, Director, Institute for International Research on Criminal Policy, Ghent University; Extraordinary Professor of Evidence Law, Maastricht University Giuliana Ziccardi Capaldo (Italy) Professor of International Law, Faculty of Law, University of Salerno

volume 8 The titles published in this series are listed at brill.com/icls

The Position of Witnesses before the International Criminal Court By

Sylvia Ntube Ngane

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Ngane, Sylvia Ntube, author.  The position of witnesses before the international criminal court / by Sylvia Ntube Ngane.   pages cm. — (International criminal law series ; volume 8)  Based on author’s thesis (doctoral) — University of Leeds, 2013.  Includes bibliographical references.  ISBN 978-90-04-30194-8 (hardback : alk. paper) — ISBN 978-90-04-30195-5 (e-book) 1. Witnesses. 2. Criminal procedure (International law) I. Title.  KZ7424.N46 2015  345’.066—dc23

2015024964

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 2213-2724 isbn 978-90-04-30194-8 (hardback) isbn 978-90-04-30195-5 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

To the victims of international crimes My hope is that this book assists the international community in bringing justice to the millions of victims of international crimes around the world

∵

Contents Preface xi Acknowledgements xii Abbreviations xiii Introduction 1 1 Witnesses before a Cosmopolitan Criminal Court 11 1.1 Cosmopolitanism 12 1.1.1 Origins/Today 12 1.1.2 Contemporary Versions of Cosmopolitanism 16 1.1.3 A Defence for Cosmopolitanism 21 1.1.4 Aspects of Cosmopolitanism Employed in Study 29 1.2 Cosmopolitan Courts and Tribunals 35 1.2.1 The ICC as a Cosmopolitan Court 35 1.2.2 Justification as a Cosmopolitan Court 42 1.3 Witnesses 51 1.3.1 Importance of Witnesses 52 1.3.2 Duties Attached to Witnesses and the Obligation to Sanction 56 1.3.3 A Cosmopolitan Argument: Universal Duty Attached by Humanity 57 1.4 Failings in the Link between Witnesses and the Cosmopolitan Vision 62 1.5 Argument for the Icc as a Moral Teacher 67 1.6 Conclusion 71 2 International Criminal Tribunal for the Former Yugoslavia (ICTY) 73 2.1 Witness Journey 74 2.1.1 Sourcing 74 2.1.2 Modelling 75 2.1.3 Cost/Inducement 80 2.1.4 Cooperation 82 2.1.5 Proofing and Familiarization 84 2.1.6 Right to Protection 85 2.2 Obligations 87 2.2.1 Duty to Testify and Speak Truth 87 2.2.2 Duty to Follow Directions of the Tribunal 121

viii 2.3 Criminal Sanctions 126 2.3.1 Follow Directions of the Court 129 2.3.2 False-Testimony 135 2.4 Conclusion 140 3 International Criminal Tribunal for Rwanda 143 3.1 Witness Journey 144 3.1.1 Sourcing 144 3.1.2 Modelling 144 3.1.3 Cost/Inducements 148 3.1.4 Cooperation 150 3.1.5 Proofing and Familiarisation 153 3.1.6 Witness Protection 154 3.2 Duties Attached to Witnesses and the ICTR 159 3.2.1 Duty to Testify and Speak the Truth 159 3.2.2 Duty to Obey Directions 178 3.3 Sanctions 181 3.3.1 Contempt 181 3.3.2 False Testimony 183 3.3.3 Case-Law 187 3.4 Conclusion 190 4 Special Court for Sierra Leone (SCSL) 194 4.1 Witness Journey 194 4.1.1 Sourcing/Modelling 194 4.1.2 Cost/Inducement 199 4.1.3 Proofing and Familiarisation 202 4.1.4 Witness Right to Protection 203 4.2 Obligations Attached to Witnesses  205 4.2.1 Duty to Testify and Speak the Truth 206 4.2.2 Duty to Follow Directions of the Scsl 220 4.3 Sanctions 226 4.3.1 Contempt 226 4.3.2 False Testimony 228 4.4 Conclusion 231 5 The International Criminal Court (ICC) Witness Scheme 234 5.1 Witness Journey 238 5.1.1 Modelling 238 5.1.2 Sourcing 245

CONTENTS

CONTENTS

5.1.3 Cost/Incentives 249 5.1.4 Witness Preparation: Familiarisation/Proofing 251 5.2 Cooperation 257 5.2.1 Legislative History 258 5.2.2 Facilitate Voluntary Appearance 260 5.2.3 General Obligation to Cooperate 266 5.3 The Right to Protection 269 5.4 Responsibility of Witnesses 271 5.4.1 Witness Attendance 271 5.4.2 Methods of Providing Testimony 277 5.4.3 Credibility/Admissibility and Relevance of Testimony 292 5.5 Sanctions 306 5.5.1 Legislative History 306 5.5.2 Analysis 314 5.5.3 Cooperation with Regards to Witness Sanctions 322 5.5.4 Misconduct 329 5.6 Conclusion 331 6 Lessons Learnt: The Cosmopolitan Witness and Court 335 6.1 General Comments and Lessons Learnt 335 6.2 The Role of Witnesses and What this Tells Us about the System of Global Governance 341 6.3 Conclusion 342 Bibliography 347 Index 403

ix

Preface The genesis for the research began when I was a law clerk at the International Criminal Court (ICC) Office of the Prosecutor (OTP) Jurisdiction, Complemen­ tarity and Co-operation Division and as an intern at the International Criminal Tribunal for the former Yugoslavia (ICTY) OTP Transition Team. It was evident from my work at the ICC and ICTY that there was an absence of academic material on developed doctrine and jurisprudence dealing with the position of witnesses before international criminal tribunals and court or a monograph on the witness scheme of international criminal courts and tribunals dealing with issues of jurisdiction and judicial authority over witnesses. This book in part addresses this lacuna building on the emergent literature and establishing a critical reading of doctrine and practice grounded in cosmopolitan theory. The study is an evaluation of the doctrine and practice of international criminal courts and tribunals on the position of witnesses against a theoretically informed ideal of a cosmopolitan world order. It seeks to ascertain that there is a cosmopolitan international community, with shared values, that are instantiated in the international criminal tribunals, and that is what justifies the exercise of jurisdiction over witnesses who provide false testimony or engage in other forms of contempt of court. The book evaluates the practice of the ICC, the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). It examines the implications of cosmopolitan thought for the functioning of the ICC, and the implications of this for the position of witnesses before the ICC and these tribunals. The cosmopolitan theory becomes a way of understanding the assertions about international criminal institutions and a way of critiquing their practice and jurisprudence. It is used as an analytical tool to judge the extent to which these courts and tribunals exhibit cosmopolitan features. At the same time the theory is used as a normative framework to guide the permanent ICC in its dealings with witnesses and determine the position of witnesses before the ICC. Through this process the book reveals gaps between the theory and practice, recognising that in application and practice things like a cosmopolitan moral court is very problematic. The evidence from these criminal courts and tribunals most especially with regards to the sanctioning of witnesses for false testimony sets out how in an operational sense the assertions about cosmopolitanism are open to challenge. Notwithstanding this challenge, the book shows how the gap between the theory and practice could be bridged and cosmopolitan features and principles could remain embedded in the permanent ICC.

Acknowledgements I would like to thank my saviour Jesus Christ and my heavenly Father for all the grace, protection, and guidance throughout this study, thank you God. My sincere gratitude goes to Professor Steven Wheatley, Professor Sarah Blandy, Professor Mark Findlay, Professor Rob Cryer, Dr. Amrita Mukherjee, Professor Dagmar Schiek and Dr. Anashri Pillay for your comments, discussions and advice through the study. Special thanks to the University of Leeds, the Centre for International Governance at the School of Law for providing me with funding to carry out this study, the entire School of Law administrative staff and postgraduate officer Karin Houkes. To Dr. Rastan Rod of the ICC, for his responses, comments and valuable information at the beginning of this research, Miriam Spittler, the ICC/OTP JCCD team, to Marie Ursula-Kind and ICTY/OTP transition team, as it is through my work with these teams that, the inspiration to carry out this research originated. To my parents and siblings Mr. Ngane Alfred Awong, Mrs. Ngane Vivian Ngonjom, Ngane Elvis, Dr. Ngane Jeanne, Ngane Alan, Ngane Harris, Dr. Ngane Solange and Samuel Agueme Oum. I am very grateful for your prayers, moral and financial support throughout this period. Immense thanks, to Akwen Ndi Harris, Fese Nkele, Immaculate Akanang Conduct, Dr. Irene Alobwede, Cindy Ejede-Ejede and Martha Bayoi, ladies I thank the Lord for giving me you as friends and sisters as you have been of great support all round. With my family, you all believed in me and encouraged me every time I was discouraged. It is a blessing to have you all as family and friends. To, babies Quinn, Mark, Jessica, Theia, Heidi, Ralph, Daniel, Sasha, Fraser, Elon, Esona, Ethan, Noah, Bessem, Matthew, Nzelle, Konge, Morgan and Emmanuel who always brought a smile to my face through this study. Also a massive thank you to Gareth Harris, Adam Conduct, Tse Nkwenti, Jude Ncho, Susan Oben Tabot, Dr. Christina Abongue, Dr. Robert Eno, William Lifongo, Nsangou Yenkong, Dibo Nkele Maxwell, Kevin Maxwell, Dr. Jey Ngole, Belle Ngole, Patrick Tsanga, Beju Agbor, Clara Ekole Munzu, Julian Munzu, Ewande Ebongalame, Wase Musonge Ediage, Asamau Bodylawson Nji, Grace Mukete, Gladys Fosam, Gladys Mbeng Ayukosok, Dr. Goddy Enongene, Ngane Benjamin, Max Ewane, Eric Nzuobontane, Charles Ekow Baiden esq., Rita Enow-Mbi, Barbara van Rooijen, Jennifer Walker, NanaEssi Casely-Hayford, Patience Mesumbe, Nzume Epitime, Guilbert Ebune, Mrs Jacqueline Tambi King, Ndi girls (Fri, Mama and Bei), Gwen EjedeEjede Mossoungui, Nono Nkele, Yeelen Nkok Zoah, Suzanne Nkok-Dubach, Oumarou, Dr. Trisha Rajput, Dr. Ludivine Petetin and Dr. Paul Emong you were all supportive in many different ways throughout this process. Thank you. Finally, a massive thank you to Lindy Melman, Bea Timmer and the entire Brill publication team for making this work go public.

Abbreviations ASP DRC ICC ICRC ICTR ICTY ILC IO MOU NGO OTP PrepCom RPE SCSL UN UNGA UNSC UNSG VWU

Assembly of State Parties Democratic Republic of Congo International Criminal Court International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Commission International Organisations Memorandum of Understanding Non-Governmental Organisations Office of the Prosecutor Preparatory Committee for the Establishment of the ICC Rules of Procedure and Evidence Special Court for Sierra Leone United Nations United Nations General Assembly United Nations Security Council United Nations Secretary-General Victims and Witnesses Unit

Introduction Unlike the former tribunals that is the International Military Tribunal at Nuremburg and the International Military Tribunal for the Far East which greatly relied on documentary evidence, present day international criminal courts and tribunals have relied overwhelmingly on witness testimony recounting events to decide allegations of criminal conduct and to deliver guilty verdicts that the international community will consider just and truthful.1 A former Judge at the International Criminal Tribunal for the former Yugoslavia Patricia Wald has described witnesses in war crimes tribunal proceedings as ‘precious commodities’.2 Goran Sluiter observes that the figures on witnesses used in cases before the ad hoc tribunals underline the importance of testimonial evidence.3 The importance of testimonial evidence can be judged with regard to some particular features of international criminal prosecution by these courts and the particular nature of the crimes before them.4 In light of this, in order to evaluate the position of witnesses before the International Criminal Court (ICC), it is necessary to examine the position of witnesses before other present day international criminal tribunals in order to inform the proper approach of the ICC to the sanctioning of witnesses for false testimony and for other forms of contempt of court. The book examines the witness scheme of the ICC and that of three present day tribunals the ICTY, the International Criminal Tribunal for Rwanda (ICTR) 1 See Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 233–238; Goran Sluiter, ‘The ICTR and the protection of witnesses’ (2005) Journal of International Criminal Justice 962, 963; Mark B. Harmon and Fergal Gaynor, ‘Prosecuting massive crimes with primitive tools: three difficulties encountered by prosecutors in international criminal proceedings’ (2004) Journal of International criminal Justice 403, 421; Christine M. Chinkin, ‘Due Process and Witness Anonymity’ (1997) The American Journal of International Law 75, 76; Joana Pozen, ‘Justice Obscured: The Non-disclosure of Witnesses’ Identities in ICTR Trials’ (2005) New York University Journal of International Law and Politics 281; Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds), International and National Prosecution of Crimes under International Law; Current Developments (Berlin Verlag Arno Spitz GMBH 2001) pp. 309–383; Prosecutor v. Tadic Decision on the Prosecution’s Motion Requesting Protective Measures for Victims and Witnesses, IT-94-1-T 10 August 1995 para. 23. 2 Patricia M. Wald, ‘Dealing With Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights & Development Law Journal 217, 238–239. 3 Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 233–234. 4 Ibid., p. 234. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004301955_002

2

introduction

and the Special Court for Sierra Leone (SCSL). These tribunals have been a source of inspiration in drafting ICC witness provisions with their laws, rules and jurisprudence sometimes acting as a point of reference.5 The book is therefore an evaluation of the doctrine and practice of these international criminal courts and tribunals on the position of witnesses against a theoretically informed ideal of a cosmopolitan world order. I seek to ascertain that there is a cosmopolitan international community, with shared values, that are instantiated in the international criminal tribunals, and that is what justifies the exercise of jurisdiction over witnesses who provide false testimony or engage in other forms of contempt of court. The argument I develop is that, the position of witnesses before the ICC can best be explained by reference to a cosmopolitan understanding of the function of international criminal law. My objective is to evaluate the extent to which these international courts and tribunals exhibit cosmopolitan features with regards to their relationship with witnesses. It is my desire that the arguments in this book provide a reform on how witnesses and the ICC approach their responsibilities (obligations/duties) for the proper prosecution of international crimes.

Methodology and Scope

Why do I use the cosmopolitan theory to address issues of international criminal justice? What is the value of the conceptual framework of cosmopolitanism? What does it add to my argument? Why is it not enough to simply say that for quite practical reasons like ensuring fairness the ICC needs to take action against false witnesses? Following Noah Sobe, I recognise that the study of cosmopolitanism should offer us an avenue for thinking outside of the traditional paradigms and for understanding the world that appears to be emerging with globalisation.6 Using the cosmopolitan approach to answer the questions in 5 See Kevin R. Gray, ‘Evidence before the ICC’ in Dominic McGoldrick Peter Rowe and Eric Donnelly (eds) The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) pp. 287–313 at 290; Helen Brady, ‘The System of Evidence in the Statute of the International Criminal Court’ in Flavia Lattanzi and William A. Schabas Edited, Essays on the Rome Statute of the International Criminal Court (Vol. I Editrice il Sirente 1999) pp. 279–302 at 286; Fergal Gaynor and Laura K. Morris, ‘M. Cherif Bassiouni, The Legislative History of the International Criminal Court’ (2008) Journal of International Criminal Justice 815, 815 & 817; Antonio Cassese, International Criminal Law (2nd ed Oxford University Press 2008) pp. 329–330. 6 Noah W. Sobe, ‘Rethinking Cosmopolitanism as an Analytic for the Comparative Study of Globalisation and Education’ (2009) Current Issues in Comparative Education 6, 6.

Introduction

3

the book is much more significant if the ICC and other tribunals are seen as cosmopolitan. I use the cosmopolitan theory as a normative framework to provide guidance to the permanent ICC with its relationship with witnesses. According to Richard Beardsworth, contemporary cosmopolitan thought constitutes an intellectual framework within which problems directly and indirectly affecting the human species can be laid out in a way that gradually promotes reciprocal behaviour between nations, international organizations and individuals.7 Cosmopolitanism constitutes a normative theory in relation to the field of world politics that is a moral framing of what should be the case.8 As a normative theory, cosmopolitanism holds a strong place in any reflection on international and supranational terms of global power structures. Cosmopolitanism has again empirical meaning.9 Normative cosmopolitanism operates as an ideational guide to human behaviour as embedded in normative regimes that set standards and rules and as a prescription of what should be the case.10 Normative cosmopolitanism is therefore far from being only non-explanatory justification of moral commitments or an ethical idealist framework within which to think political reality.11 A particular focus in this book is on the duty of witnesses to provide truthful testimony and the correlative right of the ICC and institutions to impose penalties where this duty has been breached. Following Beardsworth, I acknowledge that normative cosmopolitanism has effects as a guide to human behaviour as embedded in the treaties and Rules of Procedure and Evidence (RPE) of the ICC and other international criminal courts and tribunals. It sets standards and rules that witnesses are meant to adhere to and as a prescription of what should be where the witness fails to adhere to these standards and rules. Hence the provisions in the Rome Statute12 and RPE13 consist of norms and principles 7

Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 13. 8 Ibid., pp. 2–3. 9 Ibid., p. 4. 10 Ibid., p. 33. 11 Ibid. 12 Rome Statute of the International Criminal Court adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court of 17 July 1998, UN doc. A/CONF. 183/9 available at http://www.icc-cpi.int/ NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf (last visited November 2012, hereinafter referred to as the ICC Statute). 13 The Rules of Procedure and Evidence available at http://www.icc-cpi.int/NR/rdonlyres/ F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/284955/RPE4thENG08Feb1200.pdf (last visited November 2012. Hereinafter referred to as the ICC RPE).

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introduction

that should act as a guide to the witness and ICC officials and as a prescription of what should be the case if these obligations are not adhered to in this case prosecution and sanctions for witness crimes. The role of witnesses before the permanent ICC should be framed through cosmopolitan principles enshrined in the Statute and its RPE. Chapter one which deals with the cosmopolitan thought sets the tone for the book. While the other four chapters examine and analyse in line with my analysis in chapter one the jurisprudence and practice of the ICC and other tribunals with regards to witnesses. For this book to be relevant and real, I recognise that cosmopolitan theory and international criminal justice are two different concepts. The first is normative minded what ought to be and the latter is empirically minded what actually happens on the ground. I claim that the treaties and RPE’s of the ICC and other three tribunals examined do have a normative framework with cosmopolitan principles incorporated into their provisions that should give them authority and jurisdiction over witnesses. The question is whether they actually exhibit these cosmopolitan principles in practice? I use cosmopolitan theory as an analytical tool to judge the extent to which these courts and tribunals exhibit cosmopolitan features. At the same time I use the theory as a normative framework to guide the permanent ICC in its dealings with witnesses and determine the position of witnesses before the ICC. Chapter one develops and defends my understanding of cosmopolitan thought grounded in the work of contemporary cosmopolitans such as David Held,14 Kwame Anthony Appiah15 and Simon Caney.16 In my opinion these works present the most compelling arguments in support of the cosmopolitan idea for the justification for jurisdiction over witnesses. A common understanding emerges in the writings that each individual belongs to a single community sharing common values and a morality and we owe obligations towards one another. This ‘cosmopolitan’ understanding is realised through global political institutions. I later apply the insights from cosmopolitan moral, legal and political thought to international criminal courts and tribunals. I also build on an existing literature that regards international criminal tribunals being cosmopolitan courts specifically the contributions of Steven Roach (edited

14 15 16

David Held, Cosmopolitanism: Ideals and Realities (Polity 2010). Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006). Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005).

Introduction

5

collection),17 Jason Ralph,18 David Hirsh,19 Daniele Archibugi,20 Roland Pierek and Wouter Werner.21 I show that by the creation of the ICC we live in a single community with shared morality. I establish that, the creation of the Court proves we have obligations towards one another i.e. an obligation to ensure that perpetrators of international crimes should be punished. I demonstrate that the ICC is an institution set to further cosmopolitan ideals. I further establish that the cosmopolitan intent for international criminal tribunals justifies the imposition of duties and sanctions on witnesses. My argument is that the authority and jurisdiction to prosecute international crimes is also extended to the crimes of those who assist the ICC in achieving its goals. I show that the jurisdiction that the ICC and other tribunals possess over witnesses can be explained by reference to the obligations that individuals owe each other in the global community as well as the necessary requirements of justice. The primary obligation of a witness is to provide truthful testimony. This can be understood as a manifestation of the cosmopolitan ideal. Understood in this way the provisions concerning witnesses in the ICC Statute and its RPE become comprehensible. Witnesses have an obligation to provide truthful testimony, and the ICC has the moral and legal right to impose sanctions where witnesses provide false testimony. This is because the ICC may be unable to undertake its ‘cosmopolitan’ function of determining justice and truth in the absence of the truthful testimony of witnesses. As I demonstrate in chapters’ two to five, the voice of a witness is usually relied on by judicial authorities as a foundation for conviction, truth and justice. Witnesses give a voice to international crime. Permitting victim witnesses for instance to tell their stories helps the Judges to get a better understanding of the events on which they are required to pass judgement because the reality of victim’s suffering may be beyond their horizons of experience.22 According to Tristan Borer, the purpose of these trials and tribunals is the discovery of 17

Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009). 18 Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007). 19 David Hirsh, Law against Genocide: Cosmopolitan Trials (Glasshouse 2003). 20 Daniele Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton University Press 2008); Daniele Archibuigi, ‘Demos and Cosmopolis’ (2002) New Left Review. 21 Roland Pierik and Wouter Werner, Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press 2010). 22 Mirjan Damaska, ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329, 334.

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introduction

facts about past actions and the assignment of blame for these actions.23 These Judges are charged to act as fact finders seeking to reconstruct facts so as to determine the truth.24 It is the responsibility of ICC Judges to establish the truth. Article 69(3) states that: “[. . .] The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.” The Judges have held that: “[. . .] the Court has a general right (that is not dependent on the cooperation or the consent of the parties) to request the presentation of all evidence necessary for the determination of the truth, pursuant to Article 69(3) of the Statute. [. . .].”25 This duty is not only that of the Judges, but also the Prosecutor. Article 54(1)(a) provides that: “The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; [. . .]”. The Judges have held that, this obligation is specifically linked to the Prosecutor’s responsibility to establish the truth.26 Thus, she is expected to present a reliable version of events.27 It is clear that both the ICC Judges and Prosecutor need to reconstruct the truth. One of the ways they do this is through the voice of the witness. Witnesses are expected to recount their firsthand experiences in a way that is comprehensible to the Judges and provide Judges sufficient information about the events in question.28 Article 69(1) provides that: “Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as 23

Tristan Anne Borer, ‘Truth Telling as a Peace-Building Activity: A Theoretical Overview’ in T. Borer (Ed), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies (University of Notre Dame Press 2006) pp. 1–57 at 20–21. 24 See M. Koskenniemi, ‘Between Impunity and Show Trials’, (2002) 6 Max Planck Yearbook of United Nations Law 1 at 9–12. NB: The fact-finding role of the Judges will be elaborated in the subsequent chapters on the ICC and other tribunals. 25 Prosecutor v. Lubanga, Decision on victim’s participation, ICC-01/04-01/06, 18 January 2008 para. 108; Prosecutor v. Katanga et al.; Public Urgent Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC-01/04–01/07–474, 13 May 2008, paras 97 & 109–110. See more on chapter five. 26 Ibid. 27 Prosecutor v. Kenyatta, Decision on defence application pursuant to Article 64(4) and related requests, ICC-01/09–02/11, 26 April 2013 para. 119; Prosecutor v. Lubanga, Judgment
on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence,” ICC-01/04–01/06, 13 October 2006 para. 52. 28 Nancy Amoury, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 177.

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7

to the truthfulness of the evidence to be given by that witness.” Their evidence therefore should be adduced to establish the factual truth. As with domestic court procedure oral testimony consists of witnesses, personally appearing in Court and in general swearing to the truth of what they depose.29 If the Judges rely on witness testimony, this testimony should be truthful. Judgements of the ICC must be perceived as reflecting a truthful account of the events that took place. Truthful witness testimony underpins credible judicial decision-making and the legitimacy that flows there-from. Hence, where the witness provides false testimony the Court should uphold its authority pursuant to Article 70(1) and punish the false witness. False testimony is a serious crime that has to be dealt with seriously for the benefit of the Court and the global community. False testimony harms not only the legitimate authority of the ICC but also individuals. It does not only constitute a direct challenge to the integrity of the proceedings before the ICC but also becomes serious when a false testimony is relied upon which leads to the conviction of an innocent person or the acquittal of a guilty person. Andre Klip observes that, perjury hinders the course of justice and might even lead to miscarriages of justice. Especially in the serious cases pending before international criminal tribunal it is important that the Judges can rely on those giving evidence. He suggests that, whenever this trust is abused it deserves a reaction.30 I claim in this study that the duties attached to witnesses and an obligation to punish false witnesses has a global content well before the creation of the Court. The norm of truthful testimony clothed with sanction is an acceptable norm. It is a universal moral principle endorsed by the cosmopolitan society. In my view it affirms Simon Caney’s argument for universalism, moral principles should apply to all and that persons throughout the world share common morally relevant properties.31 The importance of the provisions on witness truthful testimony and contempt is therefore obvious, widely recognised and embody a widely shared principle and ideal. It is my claim then that this universal understanding, thus cosmopolitan grounding justifies the ICC and other criminal tribunals’ jurisdiction and authority over witnesses and also justifies 29

See J. E. Penner, Mozley & Whiteley’s, Law Dictionary (Butterworths 12th edition 2001) p. 133. 30 Andre Klip, ‘Commentary on Decisions Relating to the false Testimony of Dragan Opacic’ in André Klip and Goran Sluiter, Annotated Leading Cases of International criminal Tribunals, Vol. 1: the International Criminal tribunal for the Former Yugoslavia 1993–1998 (Intersentia, 1999) p. 214. 31 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 57.

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punishment for false testimony. In this regard the book leads to an understanding of the ICC as a ‘moral teacher’ under a cosmopolitan ideal of world society. I argue that the ICC should act as a moral teacher asserting its jurisdiction and authority over witnesses. While the global community must also condemn acts of perjury in order to ensure the proper prosecution of international crimes. It is this cosmopolitan theory established in chapter one that becomes a way of understanding the assertions about international criminal institutions and a way of critiquing their practice and jurisprudence. Through this process I reveal gaps between the theory and practice, recognising that in application and practice things like a cosmopolitan moral court are very problematic. The evidence from these criminal courts and tribunals most especially with regards to the sanctioning of witnesses for false testimony sets out how in an operational sense the assertions about cosmopolitanism are open to challenge. This confirms that a blind faith should not be given to international tribunals and courts without giving due weight to the complexity of the situations in which they operate.32 I reveal instances where the courts as cosmopolitan courts fail to investigate prosecute and punish false witnesses and how this challenges the utility of cosmopolitanism as an analytical theory. In the conclusion to the book, I show how the gap between the theory and practice could be bridged and cosmopolitan features and principles could remain embedded in the permanent ICC. The cosmopolitan value and vision or intent remains and can be developed in future to satisfy cosmopolitan claims by specific reforms. The claim here is that cosmopolitan theory should act as a guide to the ICC. The cosmopolitan provisions with regards to witnesses incorporated in the Statute and RPE in my opinion are meant to protect the rights of all and are widely recognised. In my opinion cosmopolitan thought justifies the moral legitimacy of the Court. It’s functioning is shaped by the needs and concerns of the global community.

Structure of the Book

The book is divided into six chapters. The primary objective of chapter one is to examine the implications of cosmopolitan thought for the functioning of the ICC, and the implications of this for the position of witnesses before the ICC and other international criminal tribunals. My analysis is then applied in subsequent chapters to international criminal courts and tribunals. To evaluate 32 Mark Drumbl, Atrocity, Punishment and International Law (Cambridge University Press, 2007) pp. 9–10.

Introduction

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the ways in which the obligations that flow from a common humanity and shared morality are manifested in order to illuminate authority and jurisdiction over witnesses and the position of witnesses under the ICC. Chapters two (ICTY), three (ICTR) and four (SCSL) locate the doctrinal analysis in light of the comparative practice of these international tribunals with regards to witnesses. I show how these are inextricably bound up with the construction of witness testimony, relying on text of treaty, RPE and case law generated by them relevant to the issue of witnesses. Each chapter provides a structured analysis of the work of the tribunals in relation to witnesses. Beginning with a brief analysis of the witness-scheme, the practicalities involved and normative frameworks put in place guarantying witness rights, thus encouraging them to provide credible and truthful testimony. Key questions addressed include witness sourcing, proofing, familiarisation, modelling, cost/inducement, protection33 and international cooperation. The chapters proceed with an analysis of witness obligations and responsibilities before these tribunals. It evaluates the different methods of providing testimony and how international judges determine credibility, relevance and admissibility of testimony. Finally, the chapters discuss sanctions imposed on witnesses who have committed crimes against the court’s administration of justice and the justification of criminal sanctions. These chapters establish the practices of these tribunals answering questions of judicial authority and jurisdiction over witnesses and the justifications of imposing criminal sanctions on them. From the practices and jurisprudence, the conclusion to each chapter evaluates the extent by which the ICTY, ICTR and SCSL exhibit cosmopolitan features as discussed in chapter one. Chapter five also applies the analysis in chapter one with a critical eye on the ICC practice and jurisprudence with regards to witnesses. Following a similar structure to the other three chapters, I concentrate on five components in the ICC witness scheme; witness journey, testimony, protection, cooperation and sanctions. I examine the drafting of the key witness provisions taking into account proposals and debates during the drafting years. The work provides a detailed analysis on each of the provisions, focussing on the obligatory notion of the cosmopolitan thought while making reference to academic commentary and scholarly debates. I examine and analyse ICC practice through the 33

Although extensive research was done on protection of witnesses (an important element to the witness scheme) this is not all included in this book because the main focus of the study is on witness obligation to provide truthful testimony and that of the institutions to sanction witness crimes. For further readings please see chapters’ two to five and bibliography.

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case law establishing the rights and responsibilities of witnesses. I establish how the ICC is bound up by the construction of witness testimony, the nature of ICC judicial authority, jurisdiction over witnesses and the justification of imposing sanctions on them. The conclusion to the chapter evaluates whether obligations are fulfilled and whether the ICC so far utilizes the cosmopolitan authority and jurisdiction given to it over witnesses. Finally, in chapter six I draw conclusions on the basis of the research in previous chapters and the lessons learnt. I establish the position of witnesses before the ICC, the extent to which they may be subject to the jurisdiction of this international organisation and what this tells us about the system of global governance. I then offer some material for the ICC as a way forward in exercising its authority and jurisdiction over witnesses and supporting the assertion of a cosmopolitan moral court that furthers cosmopolitan principles.

Chapter 1

Witnesses before a Cosmopolitan Criminal Court The primary objective of this chapter is to examine the implications of cosmopolitan thought for the functioning of the ICC, and the implications of this for the position of witnesses before the ICC and other international criminal tribunals. The chapter proceeds as follows. The work first provides for an introduction to my understanding of the cosmopolitan thought, setting out the version and type of cosmopolitanism I use and the reasons why I use it. It outlines a number of conceptions of cosmopolitan moral, legal and political thought that have emerged in the literature and defends the theory. A major focus is on the works of contemporary cosmopolitans in the likes of Nussbaum, Appiah, Caney, and Held as these present the most compelling arguments in support of my understanding of the cosmopolitan idea. The chapter then applies my insights from the literature on cosmopolitan thought to develop an argument for regarding international criminal courts and tribunals as an expression of the cosmopolitan ideal. Three aspects of my understanding of the cosmopolitan thought shall be applied to justify the cosmopolitan grounding of these international criminal institutions. Firstly, that we live in a single community based on shared morality and values, this I demonstrate with the creation of the Court. Secondly the establishment of the Court reiterates my claim that we have obligations towards one another no matter the race, continent, tribe or colour. I demonstrate this by establishing our common humanity, shared values expressed in the obligation to ensure that perpetrators of international crimes should be prosecuted and punished. And finally, I demonstrate using Caney’s instrumental approach that the ICC is an institution set to further cosmopolitan ideals. I also examine some of the literature that defends the ICC and other tribunals as ‘cosmopolitan institutions’ or ‘cosmopolitan courts’. The work then proceeds to examine the position of witnesses before the ICC, in particular the extent to which the cosmopolitan vision of international criminal law supports the imposition of duties on witnesses. To establish my cosmopolitan understanding of a single community with shared values and obligations to uphold rights, I argue for a universal duty attached to witnesses and universal obligation to punish false witnesses. It is my claim here that the primary obligation of witnesses before the ICC is to provide truthful testimony. This I understand as a manifestation of the cosmopolitan ideal that individuals have obligations to other individuals. Understood in this way I argue that the provisions concerning witnesses in the ICC Statute and RPE become

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004301955_003

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comprehensible. Witnesses have an obligation to provide truthful testimony, and the ICC has the moral and legal right to impose sanctions where witnesses provide false testimony. I demonstrate and claim that cosmopolitan thought provides the basis for understanding the legitimacy of the imposition of obligations and sanctions of witnesses before the ICC. This is because the ICC is unable to undertake its ‘cosmopolitan’ function of determining justice and truth in the absence of the truthful testimony of witnesses. This function, of determining justice and truth in the international community, I argue in this chapter allows the ICC to act as a ‘moral teacher’, again expressing the cosmopolitan ideal of world society. In other words, the existence and functioning of the ICC including its exercise of jurisdiction over witnesses expresses the ideal of a cosmopolitan international community, with a shared value and vision. 1.1 Cosmopolitanism This section provides for an introduction to my understanding of the cosmopolitan thought. It sets out the version and type of cosmopolitanism I use in this study and the reasons why I use it. It begins by setting out in brief the origins of the theory through to it’s understanding today and then defends the theory against major challenges such as Realist, Marxist, Postmodern and Pluralists. I then consider the various contemporary cosmopolitan positions building up to my arguments and understanding of the cosmopolitan thought and the reasons behind my use of the type I employ in the book. 1.1.1 Origins/Today The term ‘cosmopolitan’ is derived from the Greek word Kosmopolites meaning ‘citizen of the world.’1 The concept dates back to the fourth century BC, when Cynics (Diogenes) espoused a view of humanity as a single ethical community.2 Then in the third century BC the Stoics (Cicero) stressed that each human 1 Pauline Kleingeld & Eric Brown, ‘Cosmopolitanism’ (2011) Stanford Encyclopaedia of Philosophy 1; Doug Al-Maini, ‘Cosmopolitanism, Stoicism and Liberalism’ (2007) Philosophy Culture and Traditions 145 at 152. 2 Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006) p. xii; Craig Berry, ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’ (2008) Journal of Law, Politics and Societies 15, 15–17; Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 4; Robert Cryer (eds), Research Methodologies in EU and International Law (Hart Publishing 2011) p. 46; Gilbert Leung ‘A Critical History of Cosmopolitanism’ (2009) Law Culture and Humanities 370.

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being inhabits two worlds/communities: one that is local and assigned to us by birth, and another that is truly great and truly common. The Stoics argued that each person lives in both a local community and a wider community of human ideals, aspirations and argument.3 Moving on from the Cynics and Stoics the second group of cosmopolitans were the Enlightenment thinkers such as Voltaire, Jeremy Bentham and Immanuel Kant. It has been observed that this second conception of cosmopolitanism was introduced in the eighteenth century when the term ‘Weltburger’ (citizen of the world) became one of the key terms of Enlightenment.4 Finally, the third conception of cosmopolitanism which is more recent (contemporary/modern version of cosmopolitanism) is expounded in the work of Charles Beitz, Thomas Pogge and Brian Barry.5 This latter group tends to have been influenced by the Enlightenment liberals in the likes of Immanuel Kant for instance. In the words of Richard Beardsworth, contemporary cosmopolitan argument constitutes broadly speaking an offshoot of Enlightenment liberal thought.6 Kant who was a liberal insisted that liberal ideals be conceived as applicable to a single human community and as such articulated a ‘liberal cosmopolitanism’ perspective.7 He set out his theory of cosmopolitan right, but did not envisage a global world or world state.8 He argued for, a ius cosmopoliticum (cosmopolitan law/right) a guiding principle to protect people from war, on morally grounds, this cosmopolitan right goes by the principle of universal hospitality. Kant claims the expansion of hospitality with regard to use of the right to the earth’s surface which belongs 3 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 40; for more on the Cynics and Stoics see Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’ (2007) Philosophy Culture and Traditions 145, 149–154. 4 Ibid., p. 41; Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006) pp. xii–xiii; Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 4. 5 Ibid., p. 44. 6 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 6, for more on a historical background to the cosmopolitan thought see pp. 16–21; Gerard Delanty, ‘The cosmopolitan imagination: critical cosmopolitanism and social theory’ (2006) The British Journal of Sociology 25 at 26. 7 Craig Berry, ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’, (2008) Journal of Law, Politics and Societies 15 at 15–18; See also Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’, (2007) Philosophy Culture and Traditions 145 at 147–148 & 155; David Hirsh, Law against Genocide: Cosmopolitan Trials (Glasshouse 2003) p.xii; Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 4. 8 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 42–43.

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to the human race in common would finally bring the human race ever closer to a cosmopolitan constitution.9 Kant’s theory of cosmopolitanism has however been criticised for being limited because of its attempt to preserve State sovereignty. For instance, Jürgen Habermas although like Kant rejects the world state he is of the view that Kant’s conception is beset with conceptual difficulties and no longer consonant with our historical experiences.10 It does not allow for States to interfere with each others internal affairs which as the Holocaust for instance showed could lead to gross violations of human rights by a state against its own citizens.11 Habermas defends a concept of human dignity, which serves as a moral source of enforceable (subjective) human (civil) rights. It is complemented by a theory of a cosmopolitan community with world citizens and States as legal subjects whose primary purpose is to safeguard world security and fundamental human rights as minima morality. On this basis he argues that the ‘establishment of a world citizen State of affairs’ entails that ‘infringements of human rights are to be prosecuted as criminal acts within a domestic legal order’.12 In addition, Andrew Dobson also criticises Kant for failing to incorporate an account of how all human beings interact in social, political and economic processes and thus have profound effect on each other’s lives. He calls the traditional cosmopolitanism as a thin cosmopolitanism and argues that modern cosmopolitanism is the new thick cosmopolitanism in that in associating itself with material and ideational conditions of globalisation it is more attractive guide to purposive political action.13 9

Immanuel Kant, ‘Toward Perpetual Peace,’ in Gregor MJ (trans.) Practical PhilosophyCambridge Edition of the Works of Immanuel Kant (Cambridge University Press1999) p. 329; Gilbert Leung, ‘A Critical History of Cosmopolitanism’ (2009) Law Culture and Humanities 370 at 381; Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 4. 10 Jurgen Habermas, ‘Kant’s Idea of Perpetual Peace: at Two Hundred Years Historical Remove’ in Ciaran Cronin and Pablo De Greiff (eds) The Inclusion of the Other (MIT Press Cambridge 1998) 165–201 at 166–167. 11 Ibid. For a counter-argument of the work of Kant and Habermas see Kjartan Koch Mikalsen, “Kant and Habermas on International Law” (2013) Ratio Juris. An International Journal of Jurisprudence and Philosophy of Law 302–324 (Note that as a result of the word limitation of this study, a review of both works could not be done). 12 Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) Oxford Journal of Legal Studies 293 at 309–310; for more on Kant’s conception of human dignity and State Sovereignty see pp. 304–306. 13 Dobson Andrew, ‘Thick Cosmopolitanism’, (2006) Political Studies, 165 at 170–172.

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In my view, Kant was living in a time when international law had not developed. States were still the ultimate and there was no resurgence of international organisations, which dealt with global issues. The emerging international order did not exist at the time of the Kantian critique of the possibility of an international law.14 It is only in recent times we have seen a resurgence of international organisations such as the United Nations (UN) which aim to bring peace not only between States but also protect individuals from oppression. Hence, Kant could not envisage a world state or a community governed by global institutions.15 The level of interaction between humans in the eighteenth century was not the same. Sovereignty was key and States were much more interested in consolidating their boundaries, it was about the State and its people.16 It is different today what happens within the boundaries of one State may affect another State. States are much more interested in enhancing the welfare not only of their citizens but also interested in what is outside their boundaries so as to ensure the security and welfare of their citizens and that of other citizens of the world (e.g. see trade relations, fighting crime or terrorism). Therefore, it is in my perspective that the research today has to be different from that of Kant as we live in a global age. It is worth noting that although the concept of globalisation was not apparent in Kant’s work it is possible to identify significant similarities between Kantian theory and contemporary versions of cosmopolitanism.17 David Held is one of such contemporary cosmopolitans inspired by Kant’s work. He argues that Kant’s cosmopolitan right transcends particular claims of nations and states and extends to all the universal community connoting a right and duty which must be accepted if people are to learn to tolerate one another’s company and to coexist peacefully. It is the condition of cooperative relations and of just conduct.18 According to Held, the works of philosophers such as 14 See Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) Oxford Journal of Legal Studies 293 at 303. 15 Ibid; see also David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 42–43. 16 For a history on sovereignty see Raia Prokhovnik, Sovereignty: History and Theory (Imprint Academic, 2008); Seyla Benhabib, ‘Carl Schmitt’s Critique of Kant: Sovereignty and International Law’ (2012) Political Theory at 688–713; H. T. Dickinson, ‘The EighteenthCentury Debate on the Sovereignty of Parliament’ (1976) Transactions of the Royal Historical Society 189–210. 17 Craig Berry, ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’, (2008) Journal of Law, Politics and Societies 15 at 16. 18 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 43; see also David Held, Democracy and the Global Order: From the Morden State to Cosmopolitan governance

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Kant seem to explicate and offer a compelling elucidation of the classical conception of belonging to the human community first and foremost and the Kantian conception of subjecting all beliefs, relations and practices to the test of whether or not they allow open-ended interaction, uncoerced agreement and impartial judgement.19 Kant appropriates the deep core of Stoic philosophy the idea of a kingdom of free rational beings, equal humanity, each of them treated as an end no matter where in the world he/she dwells.20 In sum, in the words of Kai Ambos, Kant laid the foundations for all current conceptions of human dignity and world peace. Indeed, the human dignity concept found its way into national legal instruments in the nineteenth century and into international instruments in the twentieth century. Thus, it was formally recognized as a legal concept and constitutes the basis and moral source of any subsequent codification of human (civil) rights. It serves as an interface between moral and positive law, preparing the ground for a transition from moral to (subjective) rights.21 Having briefly established the origins of the cosmopolitan thought up to where we are today, while acknowledging that Kant’s conceptions, has had an influence on contemporary cosmopolitans this study will employ the position of the contemporary versions of cosmopolitanism. The reason being, since my focus is on international criminal courts and tribunals the work of contemporary cosmopolitans which has been to develop a more theoretical foundation for just conduct in our contemporary globalized world would be of relevance here.22 The next part will discuss in brief the various positions of contemporary cosmopolitans so as to develop my own understanding of the cosmopolitan thought. 1.1.2 Contemporary Versions of Cosmopolitanism There is a consensus in contemporary cosmopolitan thought that we share a single global socio-economic, political or legal system or global world order. This is seen in the work of some like Charles Beitz, Thomas Pogge, David Held, (Polity 1995) p. 228; Gilbert Leung ‘A Critical History of Cosmopolitanism’ (2009) Law Culture and Humanities 370 at 381–384. 19 Ibid., p. 44. 20 Martha Nussbaum, ‘Kant and Cosmopolitanism’ in Bohman and Lutz-Bachmann (eds) Perpetual Peace: essays on Kant’s Cosmopolitan Ideal (Cambridge 1997) p. 36. 21 Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) Oxford Journal of Legal Studies 293 at 306. 22 See Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’ (2007) Philosophy Culture and Traditions 145, 145–149.

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Simon Caney, Kwame Anthony Appiah and Martha Nussbaum.23 Where the works differ is in their focus, with the literature divided into analyses respectively of political institutions, moral norms, and shared markets of forms or cultural expression.24 For instance, Nussbaum has been a renowned proponent for moral cosmopolitanism. She argues that our more fundamental and primary allegiance is with the human race not any particular group thereof from which we derive generalizable moral obligations and a universal conception of justice.25 She stresses that, Stoics recognised our dual identities that is that from the local community of birth and the community of human argument and aspiration. It is this latter community to which we owe our primary allegiance. In her view, only this latter allows us to overcome the limitations of perspective and prejudice of the former upon us.26 Nussbaum cosmopolitan concept in my opinion invokes oneness recognition of a moral commitment towards the whole world, she advocates for a universal humanity.27 On the other hand, Held focuses on institutions in a way that Nussbaum does not. He is a major influence in political cosmopolitanism. A proponent of cosmopolitan democracy envisaging centralised institutions, administrative structures and legal cosmopolitan rights to enable citizens to have direct impact on decisions with global relevance.28 He does however acknowledge Nussbaum’s view that our allegiance should first be to humanity as a whole. He argues that the foundational idea of cosmopolitan thought is the equal worth of each person as a co-member of the human species.29 Accordingly, 23

See Craig Berry, ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’ (2008) Journal of Law, Politics and Societies 15, 15–18; Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’ (2007) Philosophy Culture and Traditions 145, 147–148 7155; David Held, ‘From the American Century to a Cosmopolitan Order’ (2011) Social Europe Journal available at http://www.social-europe.eu/2011/10/from-theamerican-century-to-a-cosmopolitan-order/ (last visited November 2012); see also http:// www.opendemocracy.net/david-held/from-american-century-to-cosmopolitan-order (last visited May 2013). 24 Pauline Kleingeld & Eric Brown, ‘Cosmopolitanism’ (2011) Stanford Encyclopaedia of Philosophy 1; David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 103–112. 25 Martha Nussbaum, Cultivating Humanity (Harvard University Press, 1997) p. 17. 26 Martha Nussbaum, ‘Patroitism and Cosmopolitanism’ in Martha Nussbaum and Joshua Cohen, For Love of Country (Beacon Press 1996) 3 at 7. 27 Ibid. 28 See David Held ‘Principles of Cosmopolitan Order’, in G. Brock and Brighouse, H. (eds.) The Political Philosophy of Cosmopolitanism. (Cambridge University Press 2005) pp. 10–27. 29 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 40; Gilbert Leung, ‘A Critical History of Cosmopolitanism’ (2009) Law Culture and Humanities 370, 374–381.

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allegiance is to be owed by any individual first and foremost to the moral realm of all humanity not to the contingent groupings of nation, ethnicity and class. Individuals are not required to give up local concerns and affiliations to, for example, family, friends and fellow countrymen. Rather the cosmopolitan ideal implies that individuals acknowledge the more local commitments as morally contingent with the more important duties being owed to humanity as a whole.30 Held’s notion of cosmopolitanism has also been expressed by Kwame Anthony Appiah, who observes that there are two strands that intertwine in the notion of cosmopolitanism, one is the idea that we have obligations to others that stretch beyond those to whom we are related to by ties of kith and kind or even the more formal ties of a shared citizenship.31 The other is that we take seriously the value of particular human lives, which means taking an interest in the practices and beliefs that lend them significance. People are different, the cosmopolitan knows, and there is much to learn from those differences. Because there are so many human possibilities worth exploring, we neither expect nor desire that every person or every society should converge on a single mode of life. Whatever our obligations are to others or theirs to us they often have the right to go their own way.32 Contrary to Nussbaum’s cosmopolitan rhetoric, Appiah puts forward a cosmopolitan approach that accounts for differences he envisions world citizens who are connected to their homes, cultures and traditions but who also enjoy the presence of others from different cultures.33 He does not disregard the cosmopolitan thought that local loyalty does not negate the responsibility that a person has towards every other person but believes that under some circumstances the commitment of the cosmopolitan to his/her family and local community takes precedence. 34 Appiah’s cosmopolitan thought is therefore a blend of two principal convictions, in the words, of Doug Al-Maini ‘cosmopolitanism is that rubric’ of obligation and tolerance.35 The aspect of tolerance here indicates that human beings need to have the option at least to have special relationships with

30 Ibid. 31 Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006) pp. xiii–xv. 32 Ibid. 33 Ibid. 34 Ibid. 35 Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’ (2007) Philosophy Culture and Traditions 145, 146.

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friends and family.36 However there should be that awareness that each person you know about and can affect is someone to whom you have responsibilities to say this is just to affirm the very idea of morality.37 This awareness as I term it will not only be based on one’s relationship with his/her friends, family or local community but also with those far away, all humans. The most important element is the duty on all to ensure that one’s behaviour does not have a negative impact on others but rather benefits them.38 In my opinion individuals should be citizens of their own local communities, nations, region (continent) and of the global community (world). Following, cosmopolitanism is a theory about obligations, duties and responsibilities. It should guide the individual outwards from obvious, local obligations to distant others. Cosmopolitanism highlights the obligations we have to those whom we do not know, and with whom we are not intimate.39 Hence it requires that our global obligations such as protecting everyone’s basic human rights or ensuring everyone’s capabilities are met to the required threshold and effectively discharged.40 Three elements shared by all cosmopolitans are individualism, universality and generality. Thomas Pogge gives a good formulation of cosmopolitanism one that shares three qualities or principles.41 Accordingly the first individualism signifies that “. . . the ultimate units of concern are human beings, or persons— rather than, say, family lines, tribes, ethnic, cultural, or religious communities, nations, or states.”42 He further writes that the second universality represents “. . . the status of ultimate unit of concern attaches to every living human being equally—not merely to some subset, such as men, aristocrats, Aryans, whites, or muslims. . .” and finally the third generality “. . . this special status has global 36 See Thomas Pogge, ‘Cosmopolitanism’, in R. G. Frey and Christopher Heath Wellman (eds) A Companion to Applied Ethics (Oxford Blackwell 2008) 312–331 at 328. 37 Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006) p. xiii. 38 Ibid. 39 Gillian Brock & Harry Brighouse (eds), The political Philosophy of Cosmopolitanism (Cambridge University Press, 2005) p. 3. 40 See Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford University Press 2009) p. 12; Kok-Chor Tan, Justice Without Borders: Cosmopolitanism Nationalism and Patriotism (Cambridge University Press 2004) p. 1. 41 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) pp. 3–4; Thomas Pogge, ‘Cosmopolitanism and Sovereignty’ in C. Brown eds; Political Restructuring in Europe; Ethical Perspectives (Routlege 1994b) 89–122 at 89–90; Robert Cryer (eds), Research Methodologies in EU and International Law (Hart Publishing 2011) p. 46. 42 Thomas W. Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) Ethics 48 at 48–49.

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force. Persons are ultimate units of concern for everyone—not only for their compatriots, fellow religionists, or such like.”43 Hence, the notion of promoting universal, general, and individual rights unites all cosmopolitan thinking, from Kant to the present.44 In a nutshell, all the contemporary cosmopolitan discourse tends to be moral occupying itself with the basic needs and rights of all human beings and the basic responsibilities/duties all human beings have to fellow human beings. It leads to the focus of human beings as individuals of moral worth with general entitlements, the grounding of personal and collective behaviour by principles that include moral responsibility to humanity and a personal ethics of responsibility to suffering fellow humans.45 In my view, looking at all the different positions one feature shared amongst contemporary cosmopolitans is that we have obligations towards one another this is an expression of our common humanity. It is therefore my understanding that cosmopolitanism is about obligations towards others and the recognition of their rights. The ways in which these obligations manifest themselves depend on our interactions as citizens of the world. The most important duty and obligation is the respect of the rights of other individuals. Whether those are political, social, legal, moral, economic or cultural rights we must find a way of ensuring that those rights are effective. This brings me to the conclusion also that cosmopolitanism is about an essential moral connection that binds together all humans.46 Although, coming from different communities our lives are intertwined, we do form relationships based on mutual respect thus forming a single community.47 Living in a single community, we have to manifest our responsibilities/obligations owed to each other and on a moral front we should seek to ensure that every human being has this shared moral value. This is what this book seeks to emphasise, the cosmopolitan approach is the right approach to guide human relations in this globalised world. It is however note worthy that not everyone accepts the cosmopolitan thought and to better appreciate it as a concept there is need to consider in brief some of the critics of cosmopolitanism and why we need not be concerned about these critics. This I will do in next section. 43 Ibid. 44 Antonio Franceschet, ‘Four Cosmopolitan Projects: The International Criminal Court in Context’, in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 179–204 at 181, 191–193. 45 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 24. 46 Ibid. 47 See Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (Penguin Books 2006).

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1.1.3 A Defence for Cosmopolitanism In this section I examine some of the theories that are most critical of the cosmopolitan idea. I bring out arguments as to why we need not be concerned about these critiques. The reason for doing this is that my arguments for cosmopolitanism as a normative framework will be weakened if I fail to defend it against its major challenges such as realists, Marxists, postmodern and Pluralists theories. I will begin by considering the realist theory that holds that nation-states are the main actors in international relations. They assume a strict analytical separation of politics within and amongst the State and criticise the cosmopolitan theory for proffering a more unified conception of political life.48 They observe that States should pursue their own national interest rather than pursue cosmopolitan schemes to bring equity throughout the world. Realism is explicitly set against idealism, a factor in the Enlightenment era taken up by contemporary cosmopolitans. It is against proposals to reform the international system through law and it argues that such idealist or legalistic projects ignore the pre-eminent importance of power in international relations.49 In addition realists maintain that universal moral principles cannot be applied to the actions of States. They deny that States are motivated by moral motives and it supplies a more self-interested account of States actions. They tend to think that States can adopt moral norms in the domestic realm but not in the international realm.50 For Simon Caney, realists are ambiguous in their claim that morality has no place in international affairs and that States morally should pursue the national interest. He observes that they cannot explain why humans can be moral in domestic politics but cannot be moral in another realm such as international politics. If human nature is the key variable how can it be that persons can be moral in some areas of human life but not in others?51 Following, the question 48 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford 2005) p. 8; Jack Donnelly ‘Realism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 at 51–52; Colin Elman ‘Realism’ in Martin Griffiths International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 11–20; Martin Griffiths, Steven Roach & Scott Solomon, Fifty Key Thinkers in International Relations (Routledge, 2009) pp. 1–64; For an overview of the realist critique of cosmopolitanism see Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) pp. 48–74. 49 Ibid. 50 Ibid.; Hans Morgenthau and Kenneth Thompson, Politics Among Nations, 6th edition (New York: McGraw-Hill, 1985) pp. 165–166; Jack Donnelly ‘Realism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 at 49–54. 51 Ibid., pp. 9–11.

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one may pose is why principles that apply at the domestic realm should not be applicable at the global realm too. What should be termed a domestic affair and what should be termed a foreign affair? Is it understandable to have a clear distinction between the two? According to Held, it becomes problematic in the sense that we have relatively settled nation-states with dense and complex issues or relations with each other.52 Hence the issue of what is and what isn’t a domestic issue becomes problematic. Take for instance the Syrian civil war. Is that a Syrian issue or an Arab issue or an international issue or a global issue? The crisis clearly has implications the world over. What is the proper realm of jurisdiction for resolving the problem? Naturally realist will argue that it’s a Syrian issue but it becomes an international, global and Arab issue when there are humanitarian concerns, a refugee crisis and allegations of the use of chemical weapons. Another example is an out break of AIDS something to be dealt with within States alone. Clearly it can’t be dealt with within individual States alone because AIDS has ramifications for the populations around the world. These types of questions involve complex ramifications, which are not dealt by an individual State alone. States have become enmeshed in more complex relations and denser patterns of interconnectedness.53 In my view issues such as HIV and refugees transcend national boundaries. States have taken this on board they do not only react when their national interests are at stake. They do so because it is a global issue. States often can and do act out of moral concerns.54 Consider for instance, the US policies to fight global HIV/AIDS pandemic or the outpouring of international aid in the wake of the Indian Ocean tsunami and other natural and political disasters.55 Beardsworth refutes the realist use against liberal universalism of the concept of domestic analogy of the moralistic-legalistic fallacy and of anarchy by expositing a differentiated analysis of law.56 He observes that international human rights regime represents for cosmopolitans what is perhaps the most powerful expression of cosmopolitanism in the realm of global politics. The major question in response to realism is whether these rules have moral and 52 David Held, Democracy and the Global Order: from the Modern State to Cosmopolitan Governance (Polity Press 1995) p. 18. 53 Ibid., pp. 16–20; David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 31–32. 54 Jack Donnelly ‘Realism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 at 50. 55 Ibid.; see also The U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) available at http://www.pepfar.gov/about/index.htm (last visited June 2013). 56 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) pp. 76, 81–97.

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legal force on domestic state behavior or not. In the context of the realist critique he argues that they do in terms of legitimacy of power and given the changing nature of interest. He argues therefore for the direct exogenous effect of international law on state behavior.57 As outlined by Held, realism gives you a particular angle on the world system that is a very limited angle as it is focused on power politics. It is insufficient to examine the complexities of the world we live in today.58 Cosmopolitan thought is a useful framework for understanding contemporary global politics and its potential transformation. Cosmopolitans believe that power is multi-dimensional it is found across all dimensions of social life, economic, political, cultural etc. one finds power systems and power conflicts in all these realms.59 Held argues that democratic cosmopolitan global order must be structured by a division of powers and competences at different levels of political interaction and must involve linkages both vertical and horizontal among distinct domains of authority. Hence, power is found not just in relations within States and among States as the realist claim but also across other dimensions of social life. State power is therefore but one dimension of power though important however aspects of all of these dimensions need to be understood if the nature and prospects of State politics are themselves to be grasped satisfactorily.60 It is important to state that not all realists are advocates of state-centrism (power within and among States). Some of them do not make the normative claim but rather make arguments that international law is still dominated by States. The argument goes that international law emerges from States pursuit of self-interested policies on the international stage.61 States are primary actors because there is no political monopoly on force existing above any sovereign. International political structures are defined by the changing fates of great

57 Ibid., pp. 92–93. 58 David Held and Anthony McGrew (eds), Global Transformations: Politics, Economics and Culture (Cambridge Polity 1999) pp. 62–63; Jack Donnelly ‘Realism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 at 55. 59 Ibid. 60 Ibid., pp. 63–74; See David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 100– 101; David Held, Democracy and the Global Order: from the Modern State to Cosmopolitan Governance (Polity Press 1995) pp. 189–170 & 267–278; David Held, ‘Democracy: from citystates to a cosmopolitan order?’ (1992) Political Studies 10–39. 61 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford University Press, 2005) p. 13; Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 57.

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powers.62 The argument goes that the great powers playing or exerting control in world politics, for instance in the UN as in practice is run on a wide range of issues by dominant US, Russia, China, France or British interest. Thus, States rationally decide foreign policies depending on a combination of power and interests.63 This is a similar argument of the pluralists who place great emphasis on the pluralistic nature of international society and hence affirm the independence of States.64 They visualize the world as an “international society of states” organized around the maintenance of international order through respect for the non-intervention norms of post-Westphalia.65 Pluralism clings to the sovereignty of each nation-state and its right to conduct internal affairs predominantly as it pleases, without threat of unsolicited external intervention and the resulting danger of “hegemonic intrusions” that often triumph over local traditions and cultures.66 Pluralist accounts of international law go further and recognize in contrast to the State-centered, top-to-bottom approach of the so-called realist, interest-based theories different sources of international law outside the realm of State authority with ‘varying degrees of impact’. The ‘juris generative’ force of non-State social processes is particularly dependent on and, at the same time, advanced by the moral authority of norms, i.e. their legitimacy.67 It is however worth noting that cosmopolitanism believes in a world that transcends national boarders, it recognizes the interconnectivity, and thereupon interdependence, of the international collective resulting from globalization.68 Hence not dominated by States, States have given power or delegated power to international organisations e.g. the creation of the ICC by way of treaty or ICTY/ICTR by way of a UNSC resolution under chapter VII of

62 Jack Donnelly ‘Realism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 at 36–37. 63 Colin Elman ‘Realism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 11–20 at 16. 64 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 13. 65 Oliver Ramsbotham, Tom Woodhouse, and Hugh Miall, Contemporary Conflict Resolution (Polity Press 2011) pp. 396–397. 66 Ibid., 398. 67 Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law” (2013) Oxford Journal of Legal Studies 293 at 302–303. 68 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 31–39.

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the UN Charter.69 Even though these courts are creations of States and remain accountable to States in some cases such as for their budget or election, States have had to guarantee their independence such as in the appointment or removal of Judges and the Prosecutor in accordance with specified procedures to ensure the legitimacy of these Courts.70 Turning now to Marxism the tradition of practical-critical activity that defies reduction to any simple doctrine or single political position,71 it has much to say about historically evolving structures and practices that have crossed national boundaries and linked the domestic and the international, the economic and the political. In a nut shell much to say about the social production of global politics.72 Marx and Engels believed that capitalist globalization was transforming the international states-system. That conflict and completion between nation-states had yet to come to an end.73 Marxists and neo-Marxists have developed accounts of the modern world-system that aim to show how relations between communities have been shaped by and also shape the globalization of the capitalist system of production.74 The Marxist residing interest lies in the nature of its critique of economic and political liberalism. Its value lies in its analysis of the inextricable relation between economics and politics in the domestic and international domains. Since cosmopolitanism embodies basic liberal principles, a Marxist critique of cosmopolitanism necessarily deepens its constitutive criticisms of liberalism. This critique tends to concern the shape and role of the global economy in world politics and the relation between economics and politics in a global capitalist system.75 According to Held, the Marxist theory ignores or severely, underestimates the contributions to politics of other forms of social structure, collectivity, 69

Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law” (2013) Oxford Journal of Legal Studies 293 at 298–299. 70 David Koller, ‘The Faith of the International Criminal Lawyer’ (2008) New York University Journal of International Law and Politics 1019, 1055. 71 Mark Rupert, ‘Marxism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 35–46 at 35. 72 Ibid. 73 Andrew Linklater, ‘Marx and Marxism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 111–135 at 111. 74 Ibid., p. 135. 75 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) pp. 111–112; see also Pauline Kleingeld & Eric Brown, ‘Cosmopolitanism’ (2011) Stanford Encyclopaedia of Philosophy 1.

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agency identity interest and knowledge. As an institutional arrangement that allows for mediation negotiation and compromise among struggling factions groups and movements the Marxists model does not stand up well under scrutiny. He argues that cosmopolitanism constitutes the right response to globalization.76 However Marxists argue that cosmopolitanism is far from providing an adequate response because of the nature of economic power.77 The Marxist critique therefore argues that cosmopolitanism fails as a political response to economic globalization. On the contrary cosmopolitanism is potentially most powerful when addressing present and future relations between politics and economics. Its commitment is to the positive effects of globalization and climate change mitigation connotes world economic practices.78 Finally another major challenge of cosmopolitan theory is postmodernism. Postmodernism draws our attention to the ways in which knowledge and power are inextricably connected in the theory and practice of contemporary international relations.79 Through its genealogical method it seeks to expose the intimate connection between claims to knowledge and claims to political power and authority.80 Richard Ashley has exposed one dimension of the power-knowledge nexus by highlighting between knowledge of the State and knowledge of man. He seeks to demonstrate how sovereignty gives rise to a certain epistemological disposition and a certain account of modern political 76 David Held, Democracy and the Global order: from the Modern State to Cosmopolitan Governance (Polity Press 1995) pp. 14–15; David Held, Global Covenant: The Social Democratic Alternative to the Washington Consensus (Cambridge Polity 2004). 77 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 112; for more on the Marxist critique of cosmopolitanism see pp. 111–140. 78 Ibid., p. 171; NB since this is a study about international criminal courts and tribunals I will not discuss extensively on the Marxist theory, for more on this see David Held, ‘Liberalism, Marxism, and Democracy’ (1993) Theory and Society 249–281; See Brian Roper, The History of Democracy (Pluto Press 2012); Brian Roper, Prosperity for All? Economic, Social and Political Change in New Zealand since 1935 (Thomson 2005); Andrew Linklater, ‘Marx and Marxism’ in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 111–135; Mark Rupert, ‘Marxism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 35–46. 79 Martin Griffiths, Steven Roach & Scott Solomon, Fifty Key Thinkers in International Relations (Routledge, 2009) p. 249; see Jenny Edkins, ‘Poststructuralism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 88–98 at 88–90 & 97. 80 Richard Devetak, ‘Post-structuralism’ in in Scott Burchill & Andrew Linklater (eds) Theories of International Relations (Palgrave Macmillan, 2009) pp. 183–211 at 211.

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life.81 On one hand knowledge is thought to depend on sovereignty of the heroic figure of reasoning man who knows that the order of the world is not God-given. Hence man is the origin of all knowledge. On the other hand modern political life finds in sovereignty its constitutive principle. The State is conceived by analogy with sovereign man as a pre-given bounded entity, which enters into relations with other sovereign presences.82 A more comprehensive account of contemporary world politics must therefore include an analysis of those transversal actors and movements that operate outside and across State boundaries. It seeks to rethink the concept of the political without invoking assumptions of sovereignty and reterritorialization.83 Postmodernism is a complex theory that is neither for nor against the Enlightenment era situating the cosmopolitan disposition in the political logic of modernity and liberal universalism. At worst, this disposition does not offer an effective alternative to international public policy and remains complicit with the ‘technologizing’ strategies of global liberal governance.84 The postmodern critique of cosmopolitan is often implicit, but its problematization of domestic and international liberal regimes and criticisms of humanitarianism necessarily imply a critical approach to cosmopolitan ambition. This approach tends to focus on the double-edged nature of modern rights and their extension to the international human rights regime. Postmodern approaches to cosmopolitanism differ, therefore, in their degrees of critique, and such differences lie, ultimately, in the place accorded to law in the political sphere.85 It’s deconstruction of modernity, together with its general approach to universalist strategies of thought and practice, necessarily indicate strong resistance to the contemporary cosmopolitan disposition. The postmodernist approach

81 Ibid., pp. 184–185; Martin Griffiths, Steven Roach & Scott Solomon, Fifty Key Thinkers in International Relations (Routledge, 2009) pp. 251–258. 82 Ibid. 83 Ibid., p. 211; see also Jenny Edkins, ‘Poststructuralism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 88–98 at 90–96. 84 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) p. 197; for more on the Postmodern critique of cosmopolitanism and a response see pp. 172–224; see also Martin Griffiths, Steven Roach & Scott Solomon, Fifty Key Thinkers in International Relations (Routledge, 2009) pp. 249–273; Jenny Edkins, ‘Poststructuralism’ in Martin Griffiths (eds) International Relations Theory for the Twenty-First Century: An introduction (Routledge 2007) pp. 88–98 at 97–98. 85 Ibid.

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together with its concomitant critique of cosmopolitanism is to be understood in the context of modernity.86 According to Gerard Delanty, cosmopolitanism refers to the multiplicity of ways in which the social world is constructed in different modernity’s. He argues that rather than see cosmopolitanism as a particular or singular condition that either exists or does not, a state or goal to be realized, it should instead be seen as a cultural medium of societal transformation that is based on the principle of world openness, which is associated with the notion of global publics. He claims that today global publics are playing a critical role in such processes of transformation.87 To him cosmopolitanism does not refer simply to a global space or to post-national phenomena that have come into existence today as a result of globalization. It resides in social mechanisms and dynamics that can exist in any society at any time in history where world openness has a resonance. Clearly, cosmopolitanism has become relevant today due not least to the impact of globalization. Cosmopolitanism concerns processes of self-transformation in which new cultural forms take shape and where new spaces of discourse open up leading to a transformation in the social world. The cosmopolitan imagination from the perspective of a critical social theory of modernity tries to capture the transformative moment, interactive relations between societies and modernity’s, the developmental and dialogic.88 Although particularly characteristic of recent social theory and relevant to trends within late modernity, it is logic integral to modernity. The cosmopolitan imagination entails a view of society as an on-going process of self-constitution.89 Cosmopolitan disposition is, in overall outlook, modernist: it is committed to reason, to the modern liberal subject, to universalism; it works with the rationalist assumption that knowledge empowers.90 Politics is about making decisions and setting limits the postmodern critique misunderstands the specificity of politics and its practices go too far when it loses sight of the nature of the political sphere: delimitation and limitation of life in the context of other forces.91

86 Ibid., p. 173. 87 Gerard Delanty, ‘The Cosmopolitan Imagination: Critical Cosmopolitanism and Social Theory’ (2006) The British Journal of Sociology 25 at p. 27. 88 Ibid., pp. 43–44. 89 Ibid., pp. 39–40. 90 Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) pp. 199, 225. 91 Ibid.

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It is important to acknowledge that things have changed in the world today. States have realized that they do have obligations to the world order outside their domain. There is support for the cosmopolitan structure. We now live in a world, a single society in which the State has become somewhat decentered and fragmented locked into complex transnational processes of cultural, political, economic, legal and technological power.92 For Held, cosmopolitan democracy recognizes our complex interconnected world. It recognizes certain problems and policies as appropriate for local governments and nation states but it also recognizes others as appropriate for specific regions and still others such as elements of the environment, global security concerns world health questions and economic regulation that need new institutions to address them.93 My appreciation for the cosmopolitan thought is its attitude of being comprehensive in nature. That is, the desire to include/or deal with everyone whether he/she belongs to your community, nation-state or not and the determination to form extensive allegiances and an equal global system. I recognize that there may be flaws in cosmopolitan theory as some of these critics challenge. However we all depend on each other to exist that’s why when we have a health epidemic break out/ a civil war/ refugee/ economic crisis in one country, it becomes the responsibility of other citizens of the world to assist that country. It becomes a global issue with a moral obligation to assist. In my view, cosmopolitan commitments are meant to be well intentioned, a moral commitment to all by upholding a duty to respect the rights of all humans whether political, cultural, economic, legal or social. 1.1.4 Aspects of Cosmopolitanism Employed in Study In previous sections I establish my understanding and support of cosmopolitan theory as a useful normative and analytical tool for my study. In my understanding the cosmopolitan thought is one that entails obligations towards others and the respect of everyone’s rights no matter the tribe, race, country and colour indicating our shared and common moral value. I therefore assert there is a consensus in cosmopolitan thought that we share a single global socio-economic, political or legal system or global world order. While supporting the contemporary cosmopolitan thought the question answered in this section is what type of cosmopolitanism would I employ in this study? Why would I employ it and how will it be relevant to my study? The focus of this research is the work of the ICC consequently I draw on the cosmopolitan literature focused on the moral, legal (institutional) and political aspects as they 92 93

David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 4, 63–64. Ibid., pp. 31–39; see David Held, Models of Democracy (Polity Press 2006) p. 305.

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apply to the ICC. Importantly as I claimed and defended at the beginning of the book normative cosmopolitanism shall be employed in the study. It has effects in the real as an ideational guide to human behaviour as embedded in normative regimes that set standards and rules and as a prescription of what should be the case as I term it where there is a violation of this standards and rules.94 I argued that the provisions in the ICC Statute and RPE consist of norms and principles that should act as a guide to human behaviour i.e. towards our obligations/duties owed to each other as humans and as a prescription of what should be the case where these obligations are not adhered to in this case prosecution and sanctions for international crimes and also witness crimes. Before examining the reasons why I employ the other three types of cosmopolitan thought it is important to discuss in brief what they entail. As indicated in previous section and will be evident in this part moral cosmopolitanism which will be employed throughout this study is at the core of cosmopolitan thought and remains central to contemporary cosmopolitan ideas.95 The cosmopolitan discourse is moral in that it emphasises the morally arbitrary nature of borders. Each human being comes to the fore as a human being and the space of humanity is opened up.96 This space becomes occupied with specific entitlements (the basic needs and rights of all human beings) and duties (the basic responsibilities all human beings have to fellow human beings in need). It leads to the focus of human beings as individuals of moral worth with general entitlements, the grounding of personal and collective behaviour by principles that include moral responsibility to humanity and a personal ethics of responsibility to suffering fellow humans.97 On the other hand institutional cosmopolitanism addresses the need to move from theoretical or purely moral cosmopolitan considerations to collective practical situations. It therefore emphasises institutional arrangements over cultural, moral and normative arguments.98 While legal cosmopolitanism is a form of institutional cosmopolitanism and is committed to the complementarity between moral rights and legal entitlement. It aims to provide basic moral rights with international global legal status and international law with moral foundation.99

94 See Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press 2011) pp. 29–34. 95 Ibid., p. 23. 96 Ibid. 97 Ibid., pp. 23–24; on more on moral cosmopolitanism see pp. 23–29. 98 Ibid., p. 34 see also pp. 35–36. 99 Ibid., p. 37 see also pp. 38–40.

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Charles Beitz and Thomas Pogge have made a distinction between the moral and institutional/legal cosmopolitanism. According to Beitz moral cosmopolitanism affirms a set of universal ethical claims, while institutional cosmopolitanism affirms a world state.100 Meanwhile, Pogge in making a distinction uses the terms legal and moral cosmopolitanism, though compatible he describes the latter as more abstract thus weaker than the former.101 He argues that legal cosmopolitanism is committed to a concrete political ideal of a global order under which all persons have equivalent legal rights and duties that is are fellow citizens of a universal republic. While moral cosmopolitanism holds that all persons stand in certain moral relations to one another we are required to respect one another’s status as ultimate units of moral concern a requirement that imposes limits upon our conduct and, in particular, upon our efforts to construct institutional schemes.102 Pogge three cosmopolitan claims universality, individualism and generality mentioned earlier all constitute aspects of moral cosmopolitan thought relevant to this study. Also his definition of legal cosmopolitanism that maintains that there should be global political institutions that require specified rights and duties an institutionalisation of the moral form is also relevant to the study.103 Legal cosmopolitanism is therefore universalizing and potentially inclusive. It can be deployed to create the basis for the equal treatment of all, the entrenchment of a universal set of rights and obligations and the impartial delimitation of individual and collective action within the organisations and associations of state, economy and civil society.104 Significantly, the distinction between moral and legal cosmopolitan thought is relevant because cosmopolitans are said to be fundamentally committed to the moral claims but are not thereby necessarily committed to the institutional one. However some who affirm the moral claim do also embrace the institutional/legal claim.105 Institutional 100 Charles Beitz, ‘Cosmopolitan liberalism and the States System’ in C. Brown (eds) Political Restructuring in Europe: Ethical Perspectives (Routledge 1994) pp. 123–136 at 124–126; Amy E. Eckert, ‘The Cosmopolitan Test: Universal Morality and the Challenge of the Darfur Genocide’ in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press 2009) 205–225 at 216. 101 Thomas W. Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) Ethics 48, 49. 102 Ibid. 103 See Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) pp. 5, 148–182; Robert Cryer (eds), Research Methodologies in EU and International Law (Hart Publishing 2011) p. 48. 104 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 104. 105 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) pp. 5, 148–182.

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cosmopolitans maintain that deep institutional changes are needed, to the global system in order to realize the cosmopolitan vision adequately.106 Luis Cabrera accepts this factor of both moral and institutional working together, he writes that full acknowledgement of the demands of moral cosmopolitanism also should commit us to strong institutional cosmopolitanism, specially, to the creation of a network of strong democratic institutions above the State. The fully integrated institutional form would be democratic global governance capable of ensuring that any person born anywhere can lead a decent life.107 Following, I suggest that these institutional changes should particularly be of furthering our obligations towards one another. That is, instilling that moral duty of persons being an ultimate unit of concern to everyone, the duty owed in respecting the rights of all. To my mind the legal (institutional) will move hand in hand with the moral, without the legal the moral cannot be laid down. It emphasises the obligatory notion of the cosmopolitan thought and the shared moral value of that duty to humanity as a whole. Held is of the view that legal cosmopolitanism needs to be related to political cosmopolitanism. The later involves the development of regional and global governance and the creation of political organisations and mechanisms, which would provide a cosmopolitan framework of regulation and law enforcement across the globe.108 Political cosmopolitanism has much to say about the structures and forms of political life necessary for the creation of more democratic governance, from the local to the global levels.109 As I indicate below we have seen creations of cosmopolitan institutions incorporating universal moral principles of rights into law thus regulating our lives. These set of universal rights and obligations incorporated into law bring to light our shared morality. Thus, Held’s view that legal cosmopolitanism needs to be related to political cosmopolitanism is very essential. Again, the creation of global political institutions create the basis for the equal treatment of all and the entrenchment of a universal set of rights and obligations which are all factors of legal cosmopolitan ideals. At the same time both legal and political incorporate the principles

106 Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford University Press 2009) p. 12. 107 Luis Cabrera, Political Theory of Global justice: A Cosmopolitan case for the World State (Routledge, 2004) p. 2. 108 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 104; For more on the political cosmopolitanism see Richard Beardsworth, Cosmopolitanism and International Relations Theory (Polity Press, 2011) pp. 40–46. 109 Anthony Mcgrew, ‘Cosmopolitanism and Global Justice’ (2004) Ritsumeikan Annual Review of International Studies 1 at 1.

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of moral that is all persons are ultimate unit of concern for everyone, this is a value that must be shared by all. It is worth noting that the above arguments by Held have also been expressed by Caney who refers to political cosmopolitanism as proposals and arguments for global, supra state, or international political and legal institutions.110 Caney examines three possible approaches to the question of how institutions should be designed that is intrinsic, right-based and instrumental. In his view the concern is to evaluate how political institutions might be designed in accordance with the cosmopolitan ideal.111 Caney argues that an intrinsic cosmopolitan approach is unconvincing, the approach maintains that any plausible cosmopolitanism must include as one of its central moral tenets a commitment to the rights of self-government. It argues that the appropriate political structures are those that the people themselves choose. People have the right to decide where the boundaries fall, with whom they are to be governed and what type of political authority should govern.112 Caney suggests that the right-based and instrumental approaches are persuasive and provide support for a multi-level system of government in which supra-state authorities monitor the conduct of States and seek to ensure their compliance with cosmopolitan ideals of justice.113 The instrumental approach maintains that appropriate political institutions are those that best further cosmopolitan moral ideals for instance human rights or international distributive justice. While the former that is the right-based approach also starts with the claim that a credible cosmopolitan commitment must refer to people’s right to self-governing, it however maintains that people have a right to exercise control over the social, economic and political forces that govern what they are able to do. The appropriate political institutions are those that allow people to govern, the forces that structure what they can do in life.114 Caney concludes that global political institutions should, therefore, be construed to reflect three important values; the protection of civil and political human rights and the pursuit of cosmopolitan distributive principles (an instrumental consideration); the ability of people to affirm their cultural and national commitments (an instrumental 110 See Simon Caney, “Cosmopolitanism” in Duncan Bell (eds) Ethics and World Politics (Oxford University Press, 2010) pp. 146–163. 111 Simon Caney, Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) pp. 148–149. 112 Ibid., pp. 152, 182. 113 Ibid., p. 182. 114 Ibid.; see also David Held, Democracy and the global order: From the Mordern State to Cosmopolitan Governance (Polity 1995) p. 136.

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consideration); and the ability of people to hold accountable the institutions and agents that affect the exercise of their rights (a right-based consideration).115 For the purpose of this research the instrumental approach, which in the words of Caney seems an intuitively plausible approach will be relevant. Accordingly many cosmopolitans have adopted this approach and argue that a state-based order is not effective at securing cosmopolitan ideals and should therefore be supplemented with or replaced by, global political institutions.116 In my view these global political institutions should promote the idea that as humans we are bound and obliged by duty to respect the rights of all be it political, social, legal, moral, economic or cultural rights. All humans should ensure that one’s behaviour does not have a negative impact on others but rather should have a positive effect.117 Having asserted my support for Caney’s instrumental approach I find it necessary to defend and explain why I think the approach is useful. In my opinion the instrumental approach is vividly reflected in global political institutions such as the international criminal courts and tribunals, with cosmopolitan ideals increasingly finding their way into these institutions. As I argued at the beginning of this book and this chapter normative arguments about basic needs and interests of human beings are embedded in the treaties and RPE’s of these international institutions. The provisions tend to promote legal and moral cosmopolitan ideals incorporating universal moral principles of rights. Take for instance the permanent ICC as an institution its treaty contains norms and principles that are meant to ensure that there should be a sense of duty on every citizen in the world to respect and promote the rights of another citizen of the world. If there is a failure in this duty by any citizen of the world to respect the rights of another and such a person commits crimes that is within the jurisdiction of the Court then such a person will be prosecuted and if found guilty punished.118 The Court has jurisdiction over the nationals and territories of the 122 States Parties to the Rome Statute and other States who have accepted the ICC’s jurisdiction as well as over situations referred by the UN Security Council (UNSC).119 As already discussed and will be examined subsequently in the book the provisions found in the statutes/treaties and RPE’s of international criminal courts and tribunals 115 Ibid. 116 Ibid., pp. 159–160. 117 I recognise in preceeding section on witnesses that sometimes it may not be possible to do this. 118 See Articles 5–8. 119 See Articles 12–13; see Coalition for the International Criminal Court available at http:// www.iccnow.org (last visited June 2013).

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justify their cosmopolitan grounding. They are meant to further cosmopolitan ideals by ensuring that people are accountable for violations of human rights/humanitarian law and emphasising on our duty to protect human life/rights. This is the sense of our common humanity that is a cosmopolitan international community with shared moral values. 1.2

Cosmopolitan Courts and Tribunals

This part shall develop an argument for regarding the ICC and other inter­ national criminal courts and tribunals as reflecting the lessons of cosmopolitan thought developed in previous part. Divided into two sections, the first section outlines some of the literature (counter-arguments) that defend, the ICC and other tribunals as ‘cosmopolitan institutions’ or ‘cosmopolitan courts’. Specifically the contributions of: Steven Roach (edited collection), Jason Ralph, David Hirsh, Daniele Archibugi, Roland Pierek and Wouter Werner. In section two, I make a claim and justify the cosmopolitan grounding of the ICC based on my interpretation of the cosmopolitan thought. Three aspects of my understanding of the cosmopolitan thought shall be applied to justify the cosmopolitan grounding of the Court. 1.2.1 The ICC as a Cosmopolitan Court A number of commentators, scholars, academics have suggested that the establishment of the ICC is a cosmopolitan moment in our globalizing world.120 The mainstream understanding is that, this new regime articulated in the Rome Statute is conceived of an evolving part of a Kantian world society where cosmopolitan institutions like the Court complement the work of national and international institutions.121 In the words of Roland Pierek and Wouter Werner 120 Patrick Hayden, ‘Political Evil, Cosmopolitan Realism, and the Normative Ambivalence of the International Criminal Court’ in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 157–177 at 156. 121 Jason Ralph, ‘Anarchy is What Criminal Lawyers and other Actors Make of it: International Criminal Justice as an Institution and World Society’, in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 133–153 at 137 & 146; Ruti Teitel, ‘Humanity Law: A New Interpretive Lens on the International Sphere’ (2008) Fordham Law Review 667, 670; Daniele Archibuigi, ‘Demos and Cosmopolis’ (2002) New Left Review 24, 34; Daniele Archibuigi, ‘Demos and Cosmopolis’ (2002) New Left Review 24, 34–35; Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) pp. 23–24; Kai Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law:

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the ideals of moral cosmopolitanism have increasingly found their way into international legal institutions.122 The establishment of the ICC is based on the idea that some crimes by their very nature affect the world community as a whole as they are in Hannah Arendt’s words ‘crimes against the human status without which the very words ‘mankind and humanity’ would be devoid of meaning. In similar fashion the Court’s Statute is based upon the idea that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage’ and that prosecuting international crimes is necessary to protect the ‘delicate mosaic’ that holds the peoples of the world together.123 In the same way, Daniele Archibugi argues that institutions such as international criminal courts and tribunals have been established along the Kantian cosmopolitan law.124 Accordingly, Immanuel Kant did not envisage a juridical institution capable of enforcing cosmopolitan law. The conceptual innovation of cosmopolitan law indicated that Kant did not believe that a peaceful and democratic international society could be achieved within individual countries but rather that it also required the establishing of appropriate institutions and the development of a consistent body of law.125 He writes that it would not have been excessively foolhardy upon recognition of the rights of citizens of the world to propose their protection through the creations of bodies’ independent from States. He interprets the ICC as such a body.126 For Archibugi, the ICC is the first effective institution inspired and governed by cosmopolitan law aimed at defending and even repressing violations of legality wherever they occur.127 The establishment of the Court has been the only significant A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) Oxford Journal of Legal Studies 293 at 307–308. 122 Ibid; see also David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) pp. 54–55, see p. 43. 123 Ibid; see also Preamble of the ICC Statute; David Held ‘From Executive to Cosmopolitan Multilateralism’, in David Held (eds) Taming Globalization: Frontiers of Governance (Polity Press 2003) p. 171. 124 Daniele Archibuigi, ‘Demos and Cosmopolis’ (2002) New Left Review 24, 34; see also Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) pp. 23–24; Ruti Teitel ‘Humanity Law: A New Interpretive Lens on the International Sphere’ (2008) Fordham Law Review 667, 670. 125 Ibid. 126 Ibid., p. 35. 127 Daniele Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton University Press 2008) p. 171; see also Fergal Gaynor and Laura K. Morris M, ‘Cherif Bassiouni, The Legislative History of the International Criminal Court’ (2008) Journal of International Criminal Justice 815, 815–816.

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constitutional reform introduced in the new international climate.128 He argues that many thinkers urged Western States to progressively apply their principles of the rule of law and shared participation also within the field of international affairs. This was the basic idea behind cosmopolitan democracy to globalize democracy while, at the same time, democratizing globalization. With the sole exception of the ICC, the governments of leading Western liberal States have not responded to these appeals and no major institutional reform has occurred since the end of the Cold War.129 Held is of the view that the cosmopolitan commitment to the equal worth of all human beings finds reinforcement in the acknowledgement of the necessity of a minimum of civilised conduct and of specific limits to violence found in the commitment to the principles of Nuremburg and Tokyo war crimes tribunals, the Statutes of the Ad hoc and hybrid tribunals and that of the ICC, which outlaw genocide, war crimes and crimes against humanity.130 This state of cosmopolitanism occurred after WWII with the creation of the former war crimes tribunals, with the concept of crimes against humanity becoming a generally accepted category in international law and the acceptance of a notion of individual responsibility considered to exist toward all of humankind.131 For David Hirsh the principles had been present in international law before but at Nuremberg, an institution of enforcement was built which gave those principles as worldly actuality.132 He observes that the aftermath of WWII saw one of the foundational acts of cosmopolitan law, the creation of a tribunal that was able to bring together the power to call witnesses and punish criminals and the authority of international law.133 He calls this new form of law exercised by these tribunals, cosmopolitan criminal law, he argues that this is a new form of law which is evolving out of international humanitarian and human rights law that regulates not only the conduct of States but also the conduct of nonstate organisations and individuals.134 It is new because its authority does not originate in state sovereignty but in a set of supra-national principles, practices and institutions. It is concerned with a specific set of crimes that are so huge

128 Ibid., p. 170. 129 Daniele Archibugi, ‘Cosmopolitan Democracy and its Critics: A Review’ (2004) European Journal of International Relations 437, 438. 130 David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 55. 131 Beck Ulrich, The Cosmopolitan Vision (Polity Press Cambridge 2006) p. 45. 132 David Hirsh, Law against Genocide: Cosmopolitan Trials (Glasshouse 2003) p. xvi. 133 Ibid., pp. 14, 47. 134 Ibid., p. xii.

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that they transcend national boundaries both spatially and conceptually.135 He notes that the cold war that followed lasted for half a century, in which talk of cosmopolitan criminal law seemed to be little but a dream. But this talk reemerged after 1989 with the creation of the UN backed ad hoc tribunals the ICTY and ICTR and the creation of the permanent ICC.136 Jason Ralph writes that the ICTY and ICTR are said to be amongst the most interesting and important developments in cosmopolitan criminal legal history.137 They had an important impact in the creation of the ICC, thus creating a moral legacy, affirming that the events that took place in Rwanda and the former Yugoslavia shocked the world and the idea of prosecuting those who committed international crimes acquired a broad based support from the international community which led the need of a permanent ICC.138 Ralph observes that the cosmopolitan consciousness based on humanity existed as a matter of belief before the creation of the ICC and this found expression in the declarations of international humanitarian and human rights law as well as the movement to create a permanent court. But if individuals could violate these values with impunity then the common consciousness and the sense of society would clearly be damaged and possibly destroyed.139 For Ralph, at the end of the 1990’s the international society experienced a tipping point. That is the common interest in seeing individuals punished for crimes that offended the common value of humanity became well developed that it was no longer dependent on States exercising universal jurisdiction or the UNSC setting up ad hoc tribunals. There was a call for change, and the response to the call was the Treaty of Rome, which set up the world’s permanent and independent ICC.140 The Statute clarified the common values based on the humane treatment of individuals and groups. It specifically defines acts that are genocide, crimes against humanity and war crimes that violate those values. The argument that these are now recognised as jus cogens and therefore constitutional rules is evident not merely in the preamble of the Statute which affirms that the most serious crimes of concern to the international community as a whole

135 Ibid., p. xiii. 136 Ibid. 137 Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) p. 95. 138 Ibid. 139 Ibid., p. 89. 140 Ibid., p. 23.

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must not go unpunished. It is also evident that the rules designed to protect these values have a higher place in the hierarchy of norms.141 Furthermore counter-arguments in Steven Roach edited collection allude to the idea of the ICC being a cosmopolitan institution.142 Steven Roach speaks of the ICC as a Court established under international law with a moral mission to investigate, prosecute and punish individual perpetrators of serious international crimes. It is this condemnation that established a minimal threshold of responsibility and a permanent commitment to promote the ICC’s capacity to promote universal morality.143 The ICC in linking ratification with the promotion of universal morality underscores the many ways of building and reinforcing such universal membership.144 According to Ralph, States have found ways of responding to a cosmopolitan consciousness that demands the punishment of those individuals whose actions offend humanity.145 States conceive themselves bound by a common set of rules and that binding quality of these rules is reinforced by the observance of a common set of institutionalized practices. International criminal justice involves a set of practices that help reconstruct the common consciousness on which international society and the logic of appropriateness is based. The ICC is not merely a response to a developed consensus on the idea that individuals could and should be held criminally responsible for acts that offended humanity. The ICC is also a response to what Wendt might call the ‘instability’ of an international society that enabled unaccountable great powers to decide when and where international criminal justice was done and to effectively grant for themselves exceptions to the laws they applied to others. The social purpose of criminal justice, its internationalization both responds to and helps to reaffirm a cosmopolitan consciousness based on the idea of humanity.146

141 Ibid., pp. 23–24. 142 Steven Roach, Governance, Order and the International Criminal Court (Oxford University Press 2009). 143 Steven Roach, ‘Introduction: Global Governance In Context’, in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) at 8. 144 Ibid., p. 4. 145 Jason Ralph, ‘Anarchy is What Criminal Lawyers and other Actors Make of it: International Criminal Justice as an Institution and World Society’, in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 133–153 at 140. 146 Ibid., pp. 133–136, see also pp. 137–140.

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Patrick Hayden argues that the establishment of the Court is a cosmopolitan moment in our globalizing world.147 Its appearance seems to mark the successful realization of certain cosmopolitan ideals and practices. While some backers of the ICC might regard its creation as evidence of the progressive “enlightenment” of humankind, Hayden adopts a different approach, arguing instead that the ICC is best characterized in terms of cosmopolitan realism, that is, a critical cosmopolitanism shorn of historical and moral idealism.148 He argues that cosmopolitan realism is an attempt to connect awareness of past evils committed against the human status with a promise for a better and less end horrible political future.149 He defines the ICC as a realistically cosmopolitan institution, which is typically recognized as a product of the cosmopolitanization of international law.150 Accordingly, the Court is an interesting phenomenon because it consolidates earlier reforms to international law with seemingly more radical departures from the traditional, state-based order. He observes that it would be wrong to view the ICC as merely a continuation of earlier modes of legal cosmopolitanization of world order although the Court is built on the foundations of preceding international legal reforms; it also creates logics and dynamics that were not necessarily immanent to earlier, cosmopolitan-inspired reforms.151 Further, Antonio Franceschet writes that the ICC promotes the ideal of cosmopolitan citizenship rather than a world in which states alone are determinative and important legal subjects.152 The ICC reflects and reconstitutes a fundamental ambivalence within modern cosmopolitan politics, from Kant to the present: that sovereign statehood is both legitimated and yet also constrained, because it can be subordinated to higher moral and political goals.153 Franceschet supports that on the one hand, the ICC is typical of many previous reforms to international law. It consolidates long-standing efforts to bolster the constitutional structure and regulative mechanisms of world order for the sake of universal individual rights. On the other, and in line with Jason Ralph’s 147 Patrick Hayden, ‘Political Evil, Cosmopolitan Realism, and the Normative Ambivalence of the International Criminal Court’ in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 157–177 at 156. 148 Ibid. 149 Ibid., pp. 173–174. 150 Ibid., pp. 176, 179. 151 Ibid. 152 Antonio Franceschet, ‘Four Cosmopolitan Projects: The International Criminal Court in Context’, in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 179–204 at 180. 153 Ibid., pp. 203–204.

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chapter, the ICC reflects different constitutional logics that, to a degree, build on the statist foundations of international law while transforming and surpassing them altogether. By unpacking the different political dimensions of cosmopolitan legalism, Franceschet demonstrates that the ICC is not simply caught between morality and politics, as many suggest. More accurately, the ICC is built on the variegated demands within the politics of a broad moral tradition, cosmopolitanism.154 Finally, Amy Eckert describes the Court as a triumph of moral universalism, and any State that considers itself a member of international society must universally condemn the crime of genocide, crimes against humanity and war crimes.155 She argues that the ICC was created to address the inconsistencies within this statist framework. Universal jurisdiction reflects this cosmopolitan impulse to create a single standard of justice combined with a global ability to try those suspected of violating this standard. With respect to the prohibition of criminal acts, universality means that individuals can be prosecuted for these acts even if they do not violate the domestic law of the state where they took place. An exception to the general principle of territoriality, this aspect of universality is justified by “the assumption that these crimes undermine the international community’s interest in peace and security and by their exceptional gravity, ‘shock’ the conscience of humanity.”156 It is my understanding that the authors/scholars referred to above indicate the vision of the ICC and other tribunals as cosmopolitan institutions. In line with their arguments some crimes by their very nature affect the world community as a whole and prosecuting these crimes are essential and necessary. Following, there has been a common interest most especially through the creation of the ICC to ensure that these crimes which affect our humanity do not go unpunished. In my view, this is an affirmation to our shared values and morality. We live in a single society, no matter where violations occur around the world there should be a universal outcry condemning these violations and an obligation by all to see to it that persons responsible should be brought to justice. In line with this claim, in the next section I use these arguments to justify the cosmopolitan grounding of the ICC.

154 Ibid., p. 180. 155 Amy E. Eckert, ‘The Cosmopolitan Test: Universal Morality and the Challenge of the Darfur Genocide’, in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 205–225 at 205. 156 Ibid., pp. 217–218.

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1.2.2 Justification as a Cosmopolitan Court In this section I develop an understanding of the function of the ICC in line with the cosmopolitan ideal. Following the work of contemporary cosmopolitans mentioned at the beginning of this chapter in the likes of Nussbaum, Appiah, Held, and Caney and most importantly based on my understanding of the cosmopolitan thought. Three factors will be brought out here firstly, that we live in a single community based on shared morality and values, this I will demonstrate with the creation of the Court. Secondly the establishment of the Court reiterates my claim that we have obligations towards one another no matter the race, continent, tribe or colour. I demonstrate this by establishing our common humanity, shared values expressed in the obligation to ensure that perpetrators of international crimes should be prosecuted and punished. Finally I demonstrate using Caney’s instrumental approach that the ICC is an institution set to further cosmopolitan ideals. In outlining these three factors I also indicate and show my support of the fact that the Court is a global institution (political cosmopolitanism) created to ensure the equal treatment of all and persons being the ultimate unit of concern of everyone (legal/moral cosmopolitanism) thus it’s treaty and RPE should therefore act as a guide to us all (normative cosmopolitanism). 1.2.2.1 Single Society (Shared Moral Values) The indication that we as humans live in a single community with shared moral values has been expressed by the States Parties in the Preamble of the Rome Statute. That all peoples are united by common bonds, their cultures pieced together in a shared heritage and concerned that this delicate mosaic may be shattered at any time. Thus a necessity for a cosmopolitan community is the identification of a shared global identity one that responds to crimes.157 This has been the development of a cosmopolitan community, reflected in the idea that crimes against humanity and genocide are of universal moral concern.158 In my view, the ICC is a well formed cosmopolitan institution modelled in Jonathan Haidt and Fredrik Bjorklund definition of a well formed moral system, one that is endorsed by the great majority of its members even those who appear from outside to be victims with an additional test to see how robust this endorsement is.159 This is affirmed by the signing and ratification 157 See Preamble of the ICC Statute. 158 David Koller, ‘The Faith of the International Criminal Lawyer’ (2008) New York University Journal of International Law and Politics 1019 at pp. 1057–1058. 159 Jonathan Haidt and Fredrik BjorkLund ‘Social Intuitionists Answer Six Questions about Moral Psychology’ (2006) Social Science Research Network 1, 30.

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of the Rome Statute by a majority of States within the global community, this community founded on an inclusive morality forming the basis of establishing the ICC was confirmed when the international society of 120 States adopted the Rome Statute on 17 July 1998. Today the majority of States within this community have signed or ratified the ICC treaty. With signatories from 139 countries and 122 ratifications the treaty has got a significant endorsement from the global community.160 Some may argue that the ICC Statute is not cosmopolitan, as it has not been endorsed by some of the powerful States such as the US, China, Russia and also majority of Arab States who are not parties to the Statute.161 There has been a divergence of opinion for instance between the US and most of the rest of the world with the US opposing the Court despite the numerous safeguards built into the Court to prevent frivolous and politicised prosecutions.162 Ralph demonstrates how opponents of the Court use a concern for international order to disguise a policy motivated by a narrow conception of the national interest. Accordingly US opposition reveals the extent to which it fears being held accountable for the way America use the great power veto on the UNSC.163 America’s opposition to the Court has also succeeded in bringing to the surface the extent to which American foreign policy is driven by communitarian conceptions of democracy and international society. Despite promising to hold power accountable for egregious human rights violations, the Court is considered a threat to American sovereignty and dismissed as undemocratic.164 Notwithstanding US opposition, certain factors indicate US support for the Court. First of all, during the negotiations of the Rome Statute the US showed 160 This information is effective as of 1 May 2013 see ICC at a glance available at http://www .icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/ icc%20at%20a%20glance.aspx (last visited June 2013); also see the Coalition for the International Criminal Court available at http://www.iccnow.org/ (last visited June 2013, hereinafter referred to as CICC). 161 See the list of State Parties to the Rome Statute available at http://www.icc-cpi.int/ en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20 rome%20statute.aspx (last visited June 2013); for States who voted against the treaty see Michael P. Scharf Results of the Rome Conference for an International Criminal Court (August 1998) The American Society of International Law available at http://www.asil.org/ insigh23.cfm (last visited May 2013). 162 David Koller, ‘The Faith of the International Criminal Lawyer’ (2008) New York University Journal of International Law and Politics 1019 at 1046–1047. 163 Jason Ralph, “Between Cosmopolitan and American Democracy: Understanding US Opposition to the International Criminal Court” (2003) International Relations 195–211. 164 Ibid.

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support for the establishment of the Court by sending a delegation to Rome. This delegation participated in drafting some of the provisions in the Statute hence demonstrating their commitment towards establishing a Court that prosecutes international crimes.165 This is also supported by the fact that the Clinton administration signed the treaty in the year 2000 and supported its role and objectives.166 Also there is broad public support for the ICC among the US public at large.167 And also support from the present Obama Administration, which has taken a more positive approach towards the ICC showing steps that indicates its endorsement of the ICC Statute.168 Regardless of the US not ratifying the treaty, it has shown support for the cosmopolitan principles enshrined in the treaty. The creation of the ICC therefore represents our shared common values, confirming that we belong to a single community. The crimes within the ICC’s jurisdiction are crimes of common concern to the whole humanity. At Rome during the negotiations, 160 States were represented and 250 NGO’s were there to nominally represent voices that had been previously excluded from international society.169 Archibugi suggests that these two groups could be distinguished from what he calls an international society that represents States, and a world society that represents individuals and NGO’s. Given this virtually universal representation, the conference exercised the function of the international constitutional convention.170 In 1995 a number of NGO’s formed the NGO Coalition for the International Criminal Court (CICC). They played 165 See Legal Tools Database, ICC Preparatory Works and Rome Statute Amendments available at http://www.legal-tools.org/en/go-to-database/ltfolder/0_3940/#results (last visited May 2013); see also Statement on Status of Negotiations, UN Diplomatic Conference on the Establishment of an International Criminal Court, New York (July 15, 1998), Statement by US Delegation, Preparatory Committee on the Establishment of an International Criminal Court (March 23, 1998) available at http://www.amicc.org/usicc/ clinton (last visited May 2013). 166 See BBC News Clinton Statement on war crimes court 31 December 2000 available at http://news.bbc.co.uk/1/hi/1095580.stm (last visited May 2013). NB note that George Bush administration “nullified” the Clinton signature on 6 May 2002, alleging that the United States would no longer be involved in the ICC process and that it did not consider itself as having any legal obligations under the treaty see CICC, Americas http://www.iccnow .org/?mod=region&idureg=4 (last visited May 2013). 167 David Koller, ‘The Faith of the International Criminal Lawyer’ (2008) New York University Journal of International Law and Politics 1019 at 1047. 168 For an update of positive US approach towards the ICC see American Non-Governmental Organizations Coalition for the International Criminal Court, Administration update available at http://amicc.org/usicc/administration (last visited May 2013). 169 Daniele Archibugi, ‘Demos and Cosmopolis’ (2002) New Left Review 24, 35–36. 170 Ibid., p. 37; For further reading on the distinction between international society and world/cosmopolitan society see Jason Ralph, Defending the Society of States: why America

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an influential role in the establishment of the Court.171 During the treaty negotiations, State delegations and these various NGO’s both argued about norms that could be defended as equitable, and therefore just.172 At Rome the day was fuelled by the seduction of human rights rhetoric, conceptions of human rights presume that in the process of guaranteeing freedoms and classifying rights and entitlements all peoples will come to share similar visions for what true liberty and equality should be.173 It follows that, the involvement of these two groups in the drafting of the Statute, indicates that every citizen of the world even those who oppose the Court today were represented in the creation of this cosmopolitan court. Hence, States representing their citizens, while the NGO’s also representing the voice of every citizen of the world. Today the CICC includes 2,500 civil society organizations in 150 different countries working in partnership to strengthen international cooperation with the ICC; ensure that the Court is fair, effective and independent; make justice both visible and universal; and advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide.174 It shows the deep commitment of the international community of States and NGO’s towards a common project and interests to see to it that those who violate these shared moral values are brought to justice. 1.2.2.2 Obligations Towards One Another David Koller argues that one of the most valuable effects of international criminal law may be its contribution to the creation of a sense of cosmopolitan identity an identity which values all human beings equally independent of their national or other ties.175 As a permanent institutional framework Opposes the ICC and its vision of World Society (Oxford University Press 2007) pp. 90, 97–98. 171 See CICC, Who We Are & What We Do > Our History available at http://www.iccnow. org/?mod=cicchistory (last visited May 2013). 172 Michael J. Struett, The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court in Steven Roach (eds) Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 107–132, 115–116; see Richard Beardsworth Cosmopolitanism and International Relations Theory (Polity Press 2011) p. 93. 173 Kamari Maxine Clarke Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press 2009) p. xii. 174 For the work of the NGO’s see CICC. 175 David Koller, The Faith of the International Criminal Lawyer (2008) 40 New York University Journal of International Law and Politics 1019, 1023.

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I argue here that the ICC represents the peoples and movements of the world a cosmopolitan moral court. Again I assert that the Court reiterates our obligation to the equal moral worth of all human beings. No matter where violations occur there should be a universal outcry. People of different nations, tribes, or race interact by working together to bring to justice violators of our common humanity thereby upholding our obligations to victims of these violations. By exposing the activities of those that abuse human rights on a massive scale, by identifying those activities as crimes that offend humanity and by punishing the perpetrators of those crimes, the ICC reaffirms humanity as a value worth defending and contributes to the social construction of a cosmopolitan consciousness.176 It sustains a cosmopolitan consciousness in all humans, who become conscious that if they commit crimes that affect humanity as a whole they have failed in their obligations towards other humans and will not go unpunished. Also the consciousness of the world through the ICC to investigate, prosecute and punish violators. In the words of Ambos the mission of the Court is a twofold.177 It aims to protect fundamental human rights by prosecuting and punishing international crimes violating these rights and it strives to contribute to the ‘peace, security and well-being of the world’ by the effective prosecution of international crimes threatening these values. Ambos, argues that, yet just how difficult it is to accomplish this mission has become evident since the effective establishment of the Court in 2003.178 For instance, the ICC has been criticized for selective prosecution about its decisions of which defendants and crimes to prosecute. Virtually every choice it has made has been attacked.179 Much of the debate about such selection decisions centers on whether the ICC, and particularly its Prosecutor, are improperly motivated by political considerations. Critics charge that selection decisions are inappropriately political.180 Leaders 176 Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) pp. 99, 108. 177 Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law” (2013) Oxford Journal of Legal Studies 293 at 294. 178 Ibid. 179 Margaret M. DeGuzman, ‘Choosing to Prosecute Expressive Selection at the International Criminal Court’ (2012) Michigan Journal of International 265 at 265–266. 180 Ibid; see also William Schabas, Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2010) John Marshall Law Review 535 at 549; William Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’ (2009) Journal of International Criminal Justice 731, 753; William Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ (2009) Criminal Law Forum 5 at 33; Charles

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of African States, who form one of the most supportive constituencies of the ICC, have begun to object to the ICC’s exclusive focus on prosecuting African defendants.181 Criticism of the Court has come from the fact that all eight situations and eighteen cases have come from Africa.182 Most recently in May 2013 the chair of the African Union accused the ICC of targeting Africans on the basis of race.183 The majority of the situations before the ICC were initiated following referrals or requests from the African States in question i.e. DRC; Uganda; Central African Republic and Mali. Meanwhile the UNSC referred Sudan and Libya, while Kenya and Ivory Coast have been initiated by the Prosecutor propio motu after having been authorized by the Pre-Trial Chamber to do so.184 The ICC has argued that it operates strictly within the mandate and legal framework created by the Rome Statute; decisions are taken independently on the basis of the law and the available evidence and are not based on regional or ethnic

Jalloh, ‘Regionalizing International Criminal Law?’ (2009) International Criminal Law Review 445, 462–465; Andrew Altman and Christopher Heath Wellman, A Liberal Theory of International Justice (Oxford University Press 2009) pp. 88–94; Richard John Galvin, ‘The ICC Prosecutor, Collateral Damage, and NGOs: Evaluating the Risk of a Politicized Prosecution’ (2005) University of Miami International and Comparative Law Review 1 at 48–80; Alexander Greenwalt, ‘Justice without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) NYU Journal of International Law and Politics 583 at 626–633; Fabricio Guariglia, ‘The selection of cases by the office of the Prosecutor of the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 209–211; Human Rights Watch, Unfinished Business—Closing Gaps in the Selection of ICC Cases, 1 Septempber 2011, pp. 2, 5 available at http://www.scribd.com/doc/65101796/HRWUnfinished-Business-Closing-Gaps-in-the-Selection-of-ICC-Cases (last visited June 2013). 181 Ibid., pp. 271–272. 182 See ICC, Situations and Cases available at http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visted May 2013). 183 BBC News, African Union accuses ICC of ‘hunting’ Africans 27 May 2013 available at http://www.bbc.co.uk/news/world-africa-22681894; Tim Murithi, ‘The African Union
and the International Criminal Court: An Embattled Relationship?’ (March 2013) Policy Brief The Institute for Justice and Reconciliation p. 9; South African Foreign Policy Initiative, Why ICC is repelling Africa available at http://www.safpi.org/news/article/2013/why-iccrepelling-africa (last visted May 2013). 184 See ICC, Situation and Cases, All Situations available at http://www.icc-cpi.int/en_menus/ icc/situations%20and%20cases/situations/Pages/situations%20index.aspx (last visited May 2013).

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considerations.185 The Statute defines the criteria for deciding whether cases should be tried before the ICC or in a national judicial system, and this determination is made through a judicial process by independent judges of the ICC. An ICC investigation is triggered in one of three ways: the UNSC refers a situation under Chapter VII of the UN Charter; a state party to the Rome Statute of the ICC refers a situation; or the prosecutor initiates an investigation proprio motu on the basis of information from any source.186 Furthermore, once the UNSC refers a situation to the ICC the investigation and proceedings that may arise from that situation are governed by the Statute and the RPE and are not influenced by the UNSC or any other external body. The Court has argued that the Judges are the guarantors of the fairness of proceedings before the Court, from the authorisation of investigations to the confirmation or non-confirmation of charges and decisions on guilt or innocence.187 The selection decisions at the ICC fall primarily to the Prosecutor such decisions are subject to greater statutorily constraints and judicial oversight.188 Though the OTP has articulated guiding policies, commentators argue they do not appear to be completely followed. Observers have criticized the former Prosecutor for considering inappropriate factors in making his selection decisions.189 Pursuant to Article 54(1)(b) the OTP will investigate and consider incriminating and exonerating circumstances equally in order to establish 185 Press Release, ICC underlines impartiality, reiterates commitment to cooperation with the African Union (29/05/2013) available at http://www.icc-cpi.int/en_menus/icc/ press%20and%20media/press%20releases/Pages/pr908.aspx (last visited May 2013); see also Fabricio Guariglia, ‘The selection of cases by the office of the Prosecutor of the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 212– 217; Rod Rastan, ‘What is a case’ for the Purpose of the Rome Statute” (2008) Criminal Law Forum 435 at 447–448. 186 Ibid.; See Articles 13–15 ICC Statute; Margaret M. DeGuzman, ‘Choosing to Prosecute Expressive Selection at the International Criminal Court’ (2012) Michigan Journal of International 265 at 274–275; Fabricio Guariglia, ‘The selection of cases by the office of the Prosecutor of the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 209–218 at 213–216; Margaret DeGuzman & Willliam Schabas, ‘Initiation of Investigations and Selection of Cases’ in Goran Sluiter (eds) International Criminal Procedure: Rules and Principles (Oxford University Press 2013) pp. 131–170 at 143–149. 187 Ibid. 188 Margaret DeGuzman & Willliam Schabas, ‘Initiation of Investigations and Selection of Cases’ in Goran Sluiter (eds) International Criminal Procedure: Rules and Principles (Oxford University Press 2013) pp. 131–170 at 149. 189 Ibid.

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the truth. In accordance with its duties under Article 42(1) the OTP should act independently and members of the Office ‘shall not seek or act on instructions from any external source.’ This means the selection process is not to be influenced by the presumed wishes of any external source. The selection process is to be conducted exclusively on the available information and evidence and in accordance with the Statute and policies of the Office.190 The procedures for selection decisions are more complicated for the ICC, as it must not only select cases to prosecute but also situations to investigate. The ICC remains in its infancy and its precise scope of prosecutorial discretion remains to be determined.191 It has an obligation to contribute to the prevention of the most serious crimes of concern to the international community as a whole wherever they have been committed. Preliminary examinations are being conducted in areas that are non-African countries such as Afghanistan, Georgia, Colombia, Korea and Honduras.192 To conclude, with the creation of the Court, the international community recognized the deeper connections between humans. A more comprehensive obligation to respond to violations of human life/rights without any bias or claims of bias against any particular race, tribe, class, nationality, or gender but with a goal of prosecuting crimes that affect our common heritage wherever they may occur.193 In my view it is this global condemnation of international crimes that establishes a permanent commitment of the ICC’s capacity to promote and secure cosmopolitan principles. The cosmopolitan consciousness resonates from the fact that these crimes have a moral hence universal content the reason why they affect our common humanity everyone acknowledges this.

190 Fabricio Guariglia, ‘The selection of cases by the office of the Prosecutor of the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 209– 218 at 212–213. 191 Margaret DeGuzman & Willliam Schabas, ‘Initiation of Investigations and Selection of Cases’ in Goran Sluiter (eds) International Criminal Procedure: Rules and Principles (Oxford University Press 2013) pp. 131–170 at 143 & 149; see recommendations made for selection decisions pp. 167–169. 192 See ICC Situations and Cases available at http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/Pages/situations%20and%20cases.aspx (last visited June 2013). 193 See David Koller, The Faith of the International Criminal Lawyer (2008) 40 New York University Journal of International Law and Politics 1019.

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1.2.2.3 A Court that Furthers Cosmopolitan Ideals It is my claim in this section that the Rome Statute is cosmopolitan law, a cosmopolitan constitution in its own right, which governs the international community, guiding how human relations should work in time of peace and in time of conflicts. It forges a new consensus on universal human values, responding to the moral imperative of halting these crimes and creating the sense of obligation in all humans ensuring that one’s behaviour does not have a negative impact on others. The laws enshrined in the treaty aim to protect the rights of all humans, not only the right to life but also that of protecting political, social and cultural rights. It articulates a common interest in seeing individuals prosecuted and punished for what are called core universal crimes genocide, war crimes and crimes against humanity.194 The creation of the ICC has been termed by Kamari Maxine Clarke as a moral dream representing the ideal of universal rights.195 The Court is a culmination of universal moral principles, the values that it seeks to protect are universal and the existence of the same basic values reflects an intrinsic commonality in the sharing of certain humane values.196 Hence, I hold here that the Court is morally legitimate because its content is shaped by the pertinent needs and concerns of the global community. The treaty regulates and protects our rights as humans, its moral content and moral importance is obvious and widely recognised; it embodies widely shared principles and ideals. It creates valuable practices worth engaging with, as the principles and values are morally permissible hence legitimate because they are morally correct. Its treaty seeks to maintain order in the global world its aim is to deter people from committing international crimes, end impunity while securing legal accountability 194 See Articles 5–8 of the Rome Statute: see also Articles 2–5 ICTY Statute; Articles 2–4 ICTR Statute; Articles 2–5 SCSL Statute. NB: Note that the crime of aggression is listed under Article 5 ICC Statute as one of the core crimes. The Court does not exercise jurisdiction as the Statute did not define the crime or set out jurisdictional conditions. In 2010, the Statute was amended it now defines the crime and sets out jurisdictional conditions under Articles 15 bis and ter. Still the ICC can only exercise jurisdiction after 1 January 2017 when a decision is made by States Parties to activate the jurisdiction. 195 Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press 2009) p. xii. 196 See Fergal Gaynor and Laura K. Morris M, ‘Cherif Bassiouni, The Legislative History of the International Criminal Court’ (2008) Journal of International Criminal Justice 815, 815–816; see also Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law” (2013) Oxford Journal of Legal Studies 293 at 297–298.

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for mass atrocity crimes through criminal prosecution and ensuring justice for victims thus furthering cosmopolitan principles.197 To conclude, the moral justifications and affirmation of universal respect of humanity had a tremendous effect on the global community leading to the creation of the Court. Peoples of the world have affirmed that we belong to one single community, sharing a common humanity. This common humanity shared values and morality envisaged by the global community, justifies the ICC’s jurisdiction and authority over international crimes. Importantly, the nature of this cosmopolitan intent is not only found in the core crimes but also to other crimes committed before the Court. It is this cosmopolitan regime that contains a morally just constitution supporting and protecting the global community, victims, witnesses as well as the accused persons before it. In a nutshell the ICC is an independent global institution created by the global community with an obligation to prosecute crimes that affect us all (political/ legal cosmopolitan). Its treaty should therefore act as guidance to the Court and to the entire global community it should direct our human interactions as it is morally correct (moral/normative cosmopolitanism). 1.3 Witnesses Having established above that there is a cosmopolitan international community with shared values instantiated in international criminal courts and tribunals, this section seeks to demonstrate how this vision of international criminal law leads to the particular duties I assert on witnesses. I discuss how the cosmopolitan body of law within the ICC extends to witnesses. I begin my analysis by stating the importance of witnesses and how they serve the global community. I then examine the duties attached to witnesses and the obligation to sanction by the ICC. To establish my cosmopolitan understanding of a single community with shared values and obligations to uphold rights I argue for a universal duty attached to witnesses and universal obligation to punish false witnesses. I then acknowledge that it is not at all times witnesses adhere to their obligations showing some of the reasons behind these failings. Finally, 197 For the aims and justifications of international criminal trials see Martii Koskenniemi, ‘Between Impunity and Show Trials’ (2002) Max Planck Yearbook of United Nations Law 1; Mark Drumbl, Atrocity, Punishment and International Law (Cambridge 2007); Mirjan Damaska, ‘What is the point of International Criminal Justice’ (2008) Chicago Kent Law Review 329; Immi Tallgren, ‘The Sense and Sensibility of International Criminal Law’ (2002) European Journal of International Law 561.

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I argue that to bring back this cosmopolitan vision for international criminal law where witnesses uphold their duty, the ICC should act as a moral teacher with an obligation to punish false witnesses. 1.3.1 Importance of Witnesses One may ask how witnesses impact the global community and what does the witness have to do with the cosmopolitan discuss. This section will establish how witnesses in international criminal trials serve the global community thus a discussion on the importance of witnesses. It examines four ways by which witnesses have done so: to assist the Court to ascertain the truth and justice, for an accurate historical record to the crimes and finally to shape international law. There is common interest, a sense of duty amongst humans to ensure that perpetrators of international crimes should not go unpunished and the rights of victims to get justice be met. In achieving this, the ICC, Ad hoc and hybrid tribunals have increasingly used witnesses who have played a predominant role in providing evidence to these heinous crimes. The voice of the witness has been very important because it is the voice of the witness that the Judges may rely on to decide cases. It is usually relied on by judicial authorities, as a foundation for conviction, truth and justice, witnesses are given a voice to international crime, permitting victim witnesses for instance to tell their stories helps the Judges to get a better understanding of the events on which they are required to pass judgement because the reality of victim’s suffering may be beyond their horizons of experience.198 These Judges are charged to act as fact finders so as to determine the truth.199 Witnesses are therefore expected to recount their firsthand experiences in a way that is comprehensible to fact finders and that provides fact finders sufficient information about the events in question.200 Their evidence should be adduced to establish the factual truth; as with domestic court procedure oral testimony consists of witnesses personally appearing in Court and in general swearing to the truth of what they depose.201 The onus is on the witness he/she owes it to the Court to tell 198 Mirjan Damaska, ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329, 334; see also P. Akhavan, ‘Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) Human Rights Quarterly 737 at 737–816. 199 The fact-finding role of the Judges will be elaborated in the subsequent chapters on the ICC and other tribunals. 200 Nancy Amoury Combs, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 177. 201 See J. E. Penner, Mozley & Whiteley’s Law Dictionary (Butterworths 12th edition 2001) p. 133.

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the truth about the grave crimes of international concern wherever they have been committed. This right to the truth has been envisioned for the ICC and other criminal tribunals.202 The bedrock of the ICC and present day tribunal’s judicial process is on the honesty of witnesses. It is a foundation to the morality idea in that witness testimony is meant to be founded on truth and to represent truth.203 The search for the truth and justice is the cornerstone of these institutions and it could be achieved through the truth proof of witnesses when they tell their stories. As indicated at the beginning of this study, the ICC for instance has given the search for truth a more prominent space linking the truth to the punishment of perpetrators of core crimes. The ICC prosecutor has the duty under Article 54(1)(a) to establish the truth. Article 69(3) gives the Judges the authority to request the submission of all evidence that it considers necessary for the determination of truth.204 The Court also has the duty to establish the truth under ICC Regulation 43 it shall determine the mode of questioning witnesses, to ensure fairness and to determine the truth effectively.205 Again, in order to determine the truth it is essential that witness testimony be based on a truthful account of what actually took place, truth could only be achieved if witness based evidence is clothed with truth. Truthful testimony is to be an obligation because of the merits it contains in trials. This justifies the imposition of sanctions on any person who is in contempt of this principle. The merits here are the rights protected when a witness provides truthful testimony for the Judges may rely on it to determine the guilt or innocence of an accused. In a nutshell with heavy reliance on witnesses it is of significant importance that the Court’s credibility and proceedings be protected while also protecting the rights of victims and that of the accused. Furthermore, one of the goals of international criminal justice is to create an accurate historical record of wide scale violations of international 202 The right to know the truth will be examined in subsequent chapters. 203 See Prosecutor v. Katanga et al., Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07, 20 November 2009, paras. 49–50; ICTY, ICTR & SCSL Rule 91(A). 204 See analysis and ICC case-law at the introduction; Also see Robert Heinch, ‘How to achieve fair and expeditious trial proceedings before the ICC: Is it time for more judgedominated approach’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 479–499 at 486–487. 205 ICC Regulations of the Court 26 May 2004 ICC-BD/01–01–04 available at http://www .icc-cpi.int/NR/rdonlyres/B920AD62-DF49-4010-8907-E0D8CC61EBA4/277527/ Regulations_of_the_Court_170604EN.pdf (last visited September 2012).

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law.206 Witnesses play a significant role in assisting the courts to produce reliable historical records of the context of international crime. The use of expert witnesses for instance to provide testimony provides the Judges with an understanding of the historical events in the area where crimes were committed. The desire to set the historical record straight and to restore the integrity of human remembrance is greatly strengthened by the belief that truth telling about the past is a necessary precondition for reconciliation and avoidance of future conflicts.207 There is however the suggestion that historical recording is not fair narrative and that Judges confronted with contested fact cannot be historians.208 Nonetheless, Judge Antonio Cassese identifies the enunciation of an accurate historical record so that future generations can remember and be made fully cognisant of what happened as a worthy purpose of international criminal justice.209 Also, Donald Piragoff observes that the function of the ICC goes beyond that of an ordinary criminal court in that, to the extent possible, the parties and the Chamber have the additional obligation to clarify the historical facts underlying the crimes charged.210 In my view, records are accurate if the witness provides truthful testimony. For instance, when trials at the Ad hoc tribunals are completed there will be archives of decisions and judgements.211 If these documentations include testimonies that are not truthful then history has been distorted. Hence the obligation lies on the witness to provide credible and reliable testimony so as to produce a reliable account of the context of international crime and the truth known. Finally, witnesses have also assisted in the development of international law take for instance at the ICTR in Akayesu212 victim witnesses in horrific 206 Anna Petrig, ‘Negotiated Justice and the Goals of International Criminal Tribunals: With a focus on the Plea-bargaining Practice of the ICTY and the Legal Framework of the ICC’, (2008) Chicago-Kent Journal International & Comparative Law 1, 11–12. 207 Mirjan Damaska, ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329, 335. 208 Ibid., p. 342; see also Mark Findlay and Ralph Henham, Beyond Punishment in International Criminal Justice (Palgrave Macmillan 2010) pp. 122–123. 209 Mark Findlay and Ralph Henham, Beyond Punishment in International Criminal Justice (Palgrave Macmillan 2010) pp. 141–142. 210 Donald Piragoff, ‘Article 69, Evidence’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck 2008) pp. 1301–1336 at 1321. 211 See The Mechanism for International Criminal Tribunals available at http://www.icty.org/ sid/10874 (last visited June 2013). 212 Prosecutor v. Akayesu, Judgement, ICTR-96-4-T, 2 September 1998 (hereinafter referred to as Akayesu Judgement).

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circumstances such as rape in war, has necessitated the rethinking of procedural practice. In recognition of the personal nature of sexual matters and the pain associated with recounting such details, the Judges opted for redefining rape. They held that in considering the extent to which acts of sexual violence constitute crimes against humanity under Article 3(g) of its Statute, the Tribunal must define rape, as there is no commonly accepted definition of the term in international law. Many of the witnesses used the term “rape” in their testimony, and at times the prosecution and defence also tried to elicit an explicit description of what happened in physical terms, to document what the witnesses mean by the term “rape”. The Tribunal noted that while rape has been historically defined in national jurisdictions as non-consensual sexual intercourse, variations on the form of rape may include acts that involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.213 Commentators have observed that Akayesu put an indelible stamp on the Rome Statute even though the judgement was issued after Rome Statute had been adopted.214 In recounting their stories the witnesses in this case help develop international law thus serving the global community in the definition of rape and future punishment of the crime. If the accounts of these witnesses were not true then the wide definition of rape involving the use of objects will become problematic. Hence accounts from witnesses must be truthful, in the words of Claus Kress the witness is widely if not generally, considered to be the most important instrument to ascertain the truth in criminal proceedings, ‘stating witnesses are the eyes and ears of justice’.215 Being the eyes and ears of justice they need to adhere to the duties attached to them. These duties will be examined below.

213 Ibid., paras. 686–688; Yael Weitz ‘Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement,’ (2009) Cardozo Journal of Law & Gender 357, 366–369. 214 Akayesu judgement paragraph 416–417; Kingsley Chiedu Moghalu, ‘International Humanitarian Law from Nuremberg to Rome: The Weighty Precedents of the International Criminal Tribunal for Rwanda’, (2002) Pace International Law Review 273, 282–283; Rana Lehr-Lehnardt, ‘One Small Step for Women: Female-friendly Provisions in the Rome Statute of the ICC’ (2002) Journal of Public Law 317 328–329; Beth Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as an Object Lesson’ (2009) American University Journal of Gender, Social Policy and the Law 361, 369–370, 392. 215 Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds), International and National Prosecution of Crimes under International Law; Current Developments (Berlin Verlag Arno Spitz GMBH 2001) pp. 309–383 at 309.

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1.3.2 Duties Attached to Witnesses and the Obligation to Sanction The duties asserted to witnesses are incorporated in the treaties and/or RPE of international criminal tribunals. Witnesses have obligations to attend and testify following the laws and procedures of these institutions. Their laws and rules are legally binding on the witness. A particular focus of this study is on the duty of witnesses to provide truthful testimony and the correlative right of the ICC to impose penalties where this duty has been breached. As one of the duties attached to witnesses, truthful testimony has been incorporated into the Statute and rules and clothed with sanctions if a witness provides false testimony. At the ICC witnesses have an obligation to provide truthful testimony pursuant to Article 69(1). This duty is associated to them because of their association with the Court and as indicated in previous section because of the merits contained in giving truthful evidence in trials before the Court. The obligations attached to witnesses follows and support the fact that cosmopolitanism seeks to enhance attachments and obligations to the community of all human beings.216 Darrel Moellendorf argues that, duties of cosmopolitan justice exist because the condition that gives rise to duties of justice namely the appropriate form of association exists globally.217 He observes that they are generated by associational relations and are duties requiring action toward persons indirectly insofar as they require obeying or advocating just institutions or principles to govern the association.218 They arise if and only if persons are in association with one another and persons in general have moral duties to one another. These duties are directed toward the general institutions of public life therefore duties to obey just public institutions are particularly important.219 Analogising this to the ICC and other criminal tribunals, obligations automatically arise when these institutions bring persons into association for the purpose of prosecuting international crimes. By accepting to assist the ICC and other international criminal tribunals in providing evidence or by taking the oath or solemn declaration to speak truth, a witness declares his/ her adherence to the terms of providing testimony before these cosmopolitan institutions and this generates an obligation to fulfil the terms of providing truthful and not false testimony. Pursuant to ICC Article 69(1), before testifying each witness shall in accordance with the RPE, give an undertaken as to the truthfulness of the evidence 216 Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press 2005) p. 206. 217 Darrel Moellendorf, Cosmopolitan Justicen (Westview Press 2002) p. 30. 218 Ibid., pp. 31–32. 219 Ibid., p. 33.

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to be given by that witness. Article 70(1)(a) further provides the Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally giving false testimony when under an obligation pursuant to Article 69(1) to tell the truth.220 Witnesses are also notified prior to testifying that they are liable to prosecution for false testimony. Once a witness takes the solemn declaration to tell the truth before the Court, he/she becomes a “witness of truth” and “witness of justice”.221 The witness therefore has an obligation to contribute to establishing the truth behind the evils perpetrated in the world. The obligation here follows from the declaration that, while giving testimony a witness will speak the truth and nothing but the truth. This he/she owes to the association of the Court and global community as a whole. As the witness account of evidence-based truth is essential in the credible functioning of the Court and false testimony may be intricate to determining justice and truth by the Court and a breach to the rights of the accused and that of victims. For this reason, the ICC and other criminal tribunals are justified in investigating, prosecuting and sanctioning witnesses who provide false testimony. They have ensuing duties to impose sanctions on false witnesses. By including provisions on contempt of perjury and principles of truthful testimony into the ICC treaty, the global community i.e. the international society of States and the international community represented by NGO’s demonstrated a desire that witnesses should adhere to their obligations and should be accountable for violations. It also demonstrates the community’s commitment to protect fundamental universal values, whereby witnesses must behave in a manner that does not breach the rules and affect others in a negative manner. As will be argued in the next section the duty to provide truthful testimony is a cosmopolitan principle. It is a shared value there is the common understanding within the global community that a witness has an obligation towards others to provide truthful testimony and if in breach sanctioned. This shared value and morality is universal it gains its validity from the fact that it is practiced everywhere. 1.3.3 A Cosmopolitan Argument: Universal Duty Attached by Humanity What makes the duties attributable to witnesses cosmopolitan? This section relies on cosmopolitan ethics to establish the existence of a universal moral principle attached to all witnesses to provide truthful testimony and an 220 See also Article 71 and Rule 65 with regards to failure to follow orders before the Court. 221 See ICTY Prosecutor v. Kupreskic et al., Decision on Communication between the Parties and Their Witnesses, IT-95–16-T 21 September 1998 (hereinafter, Kupreskic Communication Decision).

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obligation for courts/institutions to sanction false witnesses. It establishes that universal values which find a worldly existence in international criminal law do not only apply to core crimes but also to crimes that affect the court’s administration of justice. Demonstrating that the obligation to provide truthful testimony clothed with an obligation to punish if in breach is a universal/global principle shared by all and has validity everywhere. It reinforces the argument that we live in a single community with shared morality and values. For an account of justice to be cosmopolitan it must be based upon conceptions that are universal or global in scope.222 Caney argues that moral universalism, maintains that there are some moral values that are valid across the world. If X is a moral universal then X applies to all persons.223 He distinguishes between two types of universalism that of scope and justification, for the purpose of this work universalism of scope fits well. In using the work of other authors/universalist who affirm universalism of scope, Caney argues that universalism of scope are values that apply to everyone in the world and conforms to the definition of universalism above.224 In outlining a persuasive argument for moral universalism which he terms the ‘General Argument for Moral Universalism’, he observes that there is a cogent argument for moral universalism: (1) that there are some valid moral principles, (2), that valid moral principles apply to all those who are similar in a morally relevant way, and (3), that persons throughout the world are similar in a morally relevant way. It follows that there are some moral principles with universal form, (the same principles apply) and universal scope (these principles apply to all).225 Accordingly, there are to be rules with a universal form (they apply without exception to all in the relevant group) and with a universal scope (the relevant group encompasses all humanity) then there must be some relevant commonalities (3). To insist that the same values apply to all requires, if it is not to be wholly whimsical or arbitrary, that all have certain morally relevant properties in common.226 For him, moral universalism would be satisfied in a world in which people of different

222 Darrel Moellendorf, Cosmopolitan Justice (Westview Press 2002) p. 18; David Hirsh Law against Genocide: Cosmopolitan Trials (Glasshouse 2003) pp. 15, 155; Simon Caney Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 30. 223 Simon Caney Justice Beyond Borders—A global Political Theory (Oxford University Press 2005) p. 26. 224 Ibid., pp. 27–29, see further discussion by Caney on this. 225 Ibid., p. 37, for further discussion on Simon Caney’s arguments for moral universalism see pages 36–39. 226 Ibid., p. 39.

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cultures observe the same just values even if they do so for different reasons and on the basis of different moral doctrines.227 Caney’s arguments for moral universalism could be best illustrated in this section. Truthful testimony clothed with sanctions for false testimony is universally acknowledged it finds universal favour and aspiration, with an increasing number of citizens of the world aspiring to it. The moral value and obligation on the part of witnesses has a long tradition dating back to ancient Rome, as well as a practice of living traditions amongst various religious, nonreligious bodies and most national legal regimes including international criminal tribunals.228 As will be illustrated below humanity imposes a moral duty on every witness to provide truthful testimony and an obligation on the Courts or institutions to punish a false witness. Humanity establishes an equal ultimate unit for concern for all persons,229 a shared understanding that even a person accused of the worst crime should have his/her rights protected to a fair trial by the Courts or institutions obtaining truthful testimony from the witness. In ancient Rome for instance, witnesses were required to swear an oath before presenting testimony.230 Two resolutions from the early Roman Senate laid down principles of false testimony given directly or given through documents. They stressed on the bringing about the death of the innocent and suggested such false witness might be from malice or for gain. Giving conflicting or even equivocating evidence could be viewed as making the witness liable to the penalty of forgery with a related offence being making false accusations.231 In addition, the Lex Cornelia de Sicarris (Statute 81 BC) covered giving false evidence in order to bring about the capital conviction of someone.232 The gravity of false testimony resulted to severe punishment of death.233 Further, the imposition of the duty on witnesses to provide truthful testimony and an obligation to punish if in violation can also be illustrated in three monotheistic faiths of Judaism, Christianity and Islam. In Christianity, the Old Testament law treats 227 Ibid., p. 30. 228 See ICC Article 69(1), Rule 66(1), Prosecutor v. Lubanga Transcript ICC-01/04–01/06 28 January 2009 pp. 1–6; ICTY Rule 90(A); ICTR & SCSL Rule 90. 229 Thomas W. Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) Ethics 48, 48–49. 230 George Mousourakis, The Historical and Institutional Context of Roman Law (Ashgate 2003) pp. 212–213, 232–233, 370; O. F. Robinson, The Criminal Law of Ancient Rome (Duckworth 1995) p. 5; George Mousourakis, The Legal History of Rome (Routledge Taylor & Francis Group 2007) pp. 80, 221, fn. 39. 231 See O. F. Robinson, The Criminal Law of Ancient Rome (Duckworth 1995) p. 37. 232 Ιbid., p. 44. 233 O. F. Robinson, Penal Practice and Penal Policy in Ancient Rome (Routledge Taylor & Francis Group 2007) p. 22.

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perjury very seriously, Christians are being told not to bear false witness, and God hates a false witness who pours out lies.234 The obedience to the prohibition against false testimony from the Ten Commandments is a requirement for eternal life.235 Perjury in court is amply prohibited by the third and ninth commandment against swearing falsely and also not giving false testimony against your neighbor.236 Under the law a false witness will not go unpunished, and he who pours out lies will perish, the judges must make a thorough investigation, and if the witness proves to be a liar, giving false testimony against his brother, then do to him as he intended to do to his brother.237 Likewise, in Islam the Holy Quran specifically terms false testimony as a greater sin, reference to the Quran 25:72 provide that “They do not bear false witness.”238 If a person testifies in an Islamic court and later regrets for his testimony, then it is first determined whether he had knowingly and intentionally testified wrongly. If it was so, then that person is branded as a transgressor whose testimony is no more valid in the Sharia Court. If due to the wrong testimony someone had to undergo undeserved punishment or suffer harm, it is for this witness to make up the loss.239 The judges may on the basis of some firm evidence falsify the testimony of a witness who had tried to mislead the court. If someone has suffered a loss the judge shall impose on the witness some exemplary punishment of a few lashes so that he may not repeat such a crime in future. He may also announce in the city and the surrounding areas that such a person is a false witness so that people may not be misled by him and may not rely upon his evidence. In this way, one who testifies falsely becomes notorious for his falsehood in the society, and the wellbeing of society is maintained.240 Similarly, Jewish law enumerates in the 613 Mitzvot,241 several 234 Holy Bible New International Version (Zondervan Publishers 1978) Proverbs 6 verse 19. 235 Ibid., Matthew 18 and 19 verses 19 respectively. The New Testament narrative also describes several occasions where people testify falsely against Jesus and his disciples. 236 Ibid., Exodus Chapters 20 verses 7 & 16. 237 See Proverbs 19 verse 9 & Deuteronomy 19 verses 15–21. 238 Sura 25, The Statute Book (Al-Furqãn) available at http://www.masjidtucson.org/quran/ noframes/ch25.html; Morals and Ethics, Greater Sin available at http://moralsandethics .wordpress.com/greater-sins/ (last visited June 2013). 239 Shaheed Ayatullah Abdul Husain Dastghaib Shirazi, Punishment for False Testimony Imam Reza (A. S.) available at http://www.imamreza.net/eng/imamreza.php?id=7368 (last visited July 2010). 240 Ibid. 241 613 commandments; are statements and principles of law and ethics contained in the Torah or Five Books of Moses. See Mendy Hecht, The 613 Mitzvot available at http://www .chabad.org/library/article_cdo/aid/756399/jewish/The-613-Mitzvot.htm (last visited July 2010).

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commandments related to honest testimony as related to judicial procedure242 such as 576 not to testify falsely243 and 577, which punishes false witnesses as they tried to punish the defendant.244 If the false testimony was calculated to result in death or calculated to occasion a monetary loss then, the false witness is to suffer the same kind of death or the court should inflict a monetary loss of equal value on the false witness.245 All these monotheistic faiths do evidence a convergence of truthful testimony clothed with sanctions thus establishing the shared human values in diverse civilizations. Even atheists who challenge the claim that the foundation of morality is based on religion also believe in truth, fairness, justice and rights.246 This could be attributed to witnesses providing truthful evidence in order to maintain the truth, achieve justice and fair trials thereby protecting the Court, the rights of the accused and victims alike. Also, every criminal justice system in the world has its share of lying witnesses,247 looking at general principles of law common to the major legal systems of the world, the law of contempt of perjury originated and has remained a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences that produce a similar result.248 On this basis, the norm of truthful testimony clothed with sanction is an acceptable norm, it is a universal moral principle endorsed by the cosmopolitan society. It affirms Caney’s argument for universalism that argues that moral principles should apply to all and that persons throughout the world share common morally relevant properties.249 Consequently, the importance of the provisions on witness truthful testimony and contempt is therefore obvious, widely

242 243 244 245 246

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Leviticus 5 verse 1. Exodus 20 verse 13. Deuteronomy 19 verse 19. Barbara Kadden & Bruce Kadden, Teaching Mitzvot Concepts, Values, and Activities (Association of Research & Enlig 2003) 107, 193. Jonathan Haidt and Selin Kesebir, ‘Morality’, in S. T. Fiske & D. Gilbert (eds) Handbook of Social Psychology (John Wiley and Sons, 5th edition Volume II, 2010) pp. 801, 820–821; Johnathan Haidt and Fredrik Bjorklund ‘Social Intuitionists Answer Six Questions About Moral Psychology’, (2006) Social Science Research Network p. 3. Nancy Amoury Combs, Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 5. Prosecutor v. Tadic, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, IT-94-1-A-R77, 31 January 2000, para. 15 (hereinafter, Judgement on Allegations of Contempt against Vujin); Goran Sluiter, The ICTY and Offences against the Administration of Justice’, (2004) Journal of International Criminal Justice 631, 631–632. Simon Caney Justice Beyond Borders—A global Political Theory (Oxford 2005) p. 57.

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recognised and embody a widely shared principle and ideal. It is this universal understanding and shared values, this cosmopolitan grounding that justifies the ICC and other criminal tribunals’ jurisdiction and authority over witnesses and also justifies punishment for false testimony. As observed, the obligation attached to witnesses is not only applicable to the ICC but it is a principle, which has a global content well before the creation of the Court. False testimony which the Court imposes punishment is not contrary to existing and reasonable clear moral standards. It is our common humanity. This principle already exists it is already capable of authoritative determination and it is universal. It is this culmination of a universal principle that is contained in Articles 69(1) and 70(1)(a) of the ICC Statute. At Rome during the drafting of these provisions there was this shared understanding of values and morality that witness testimony should be truthful. This shared value of the global community has been incorporated into the Statute.250 The obligatory notion applied by the ICC that is if a witness takes an undertaken to speak the truth of the evidence to be given and if found to have given false testimony pursuant to Article 70(1)(a) the Court shall have the jurisdiction to impose sanctions on the said witness. Punishment of a false witness makes clear the condemnation of the behaviour in question that the global community is not ready to tolerate crimes of false testimony. The role of the ICC to punish false witnesses is therefore relevant these cosmopolitan provisions are not just incorporated into the Statute. In reality, some witnesses testify for different reasons that cause them to breach their duties to the global community. I will discuss below some of the possible reasons to testify. 1.4

Failings in the Link between Witnesses and the Cosmopolitan Vision

In this part I generally examine some of the likely reasons behind the failures of some witnesses to provide truthful testimony. As observed in the introduction of this book I recognise that the cosmopolitan thought is more normatively minded and to better appreciate it as a guiding tool for the ICC it is best to examine what the case is on the ground. What is the whole point of witness testimony? Is the whole point of witness testimony to benefit others or is it that someone will be negatively impacted by the witness testimony? What will motivate a witness to testify at the ICC? While witness testimony should be founded on truth, this is not always the case as will be evidenced 250 These will be evidenced in subsequent chapters.

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in subsequent chapters truthful testimony is all too often in international criminal trials confounded or confused by contested interests. A conflicting self-interest compromising the objective certainty and eventual proof of testimonial evidence is the struggle for a considerable number of witnesses, especially those who have been the victims of the most serious crimes. For instance at the ICTY there has been concern about the accuracy of witness testimony, in part due to ethnic enmities that may promote false testimony.251 Group-based loyalty and ethnic divisions that gave rise to the international crimes in the first place can create powerful incentives to put enemies in prison, whether they belong there or not, and the international tribunals provide additional incentives perhaps unwittingly through the financial assistance that they provide to testifying witnesses.252 Frank Terrier, observes that it is the classical mission of the Judges to asses the witness testimony and professionals know it is usually harmful to believe a witness who is lying or mistaken as not to believe a witness telling the truth though not appearing to.253 Reasons for lying are many and the cause of error in good faith are numberless, but for most witnesses the requirement of justice exceeds the requirement for truth and the oath to tell the truth has obligations attached to it that are perhaps harder to escape than one might think. Being involved in conflict some of the witnesses heard may have belonged either on the victim side or the side of the accused. Resentment may cloud testimony or reduce its scope but also the commitment the person has had during the conflict. Similarly the fear of seeing oneself implicated in crimes may lead a witness to distort the pure truth.254 251 Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) American Journal of International Law 57 at 88–89. 252 Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International law & Foreign Affairs 235 at 240. 253 Frank Terrier, ‘The Procedure before the Trial Chamber’ in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, (Vol. II. Oxford University Press, 2002) pp. 1277–1318 at p. 1301. 254 Ibid.; See Goran Sluiter, ‘The ICTR and the protection of witnesses’ (2005) Journal of International Criminal Justice 962, 964; Frank Terrier ‘The Procedure before the Trial Chamber’ in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, (Vol. II. Oxford University Press, 2002) pp. 1277–1318 at 1301; Sean D. Murphy, ’Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) American Journal of International Law 57, 88–89; T. K. Kuhner, ‘The Status of Victims in the Enforcement of International Criminal Law’ (2004) Oregon Review of International Law 95, 135; R. Aldana-Pindell, ‘In Vindication

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The question one needs to ask is what is the motive of a witness to testify at the ICC? What is morality to a poor witness who comes from the depraved areas of a region in Africa, who may have no job or what is morality to a witness who has lost a member of his/her family? What is morality to a child soldier who barely earns little or has no food and believes that he will be getting a lot of money for a story or testimony whether true or false? Some witnesses may have a low regard for the oath to tell the truth, a possible reason a witness may lie is to gain an advantage, knowingly that by providing whatever testimony whether true or false will gain money or prestige or something, and so they go ahead in order to gain. Take for instance a witness who comes from the DRC from a poor family and knows he/she will go to The Hague to testify and get remuneration, he/she may be motivated by the incentive of going abroad or for instance a victim-witness who will get something out of the ICC victim fund may give whatever testimony. As earlier observed all cases before the ICC are from Africa, as will be evidenced in chapters five and also the chapters on SCSL and ICTR some witnesses most especially children are induced to provide false testimony. Poverty and ethnic affiliations may play a significant role in inducing children to provide testimony. Children in the Great Lakes region, as in other parts of Africa, are always children before their parents and community elders, even when they become adults. As such, they are never to speak out against their elders, a practice which extends to the distant relatives of their ethnic group. The role of children in society is to help their parents and community elders.255 This is why it is very easy as will be seen in chapter five, for intermediaries to corrupt the minds of child witnesses and induce them to provide false testimony. Historically lawyers and indeed psychologists have viewed children as rather unreliable witnesses. For example they have been presented as prone to fantasy and the making of false allegations and inherently suggestible. Of course adult witnesses can be equally unreliable and prone to error but children have come to be seen as particularly problematic. Children’s reliability can compromise accuracy, suggestibility, consistency and honesty for of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes’ (2002) Vanderbilt Journal of Transnational Law 1399, 1443–1457; Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 236–238. 255 See Redress, Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court September 2006 p. 7 available at http://www.redress.org/downloads/publications/ childsoldiers.pdf (last visited June 2013) (hereinafter, Redress Victims Perpetrators or Heroes).

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example.256 Many children, may decide to give evidence with the tacit consent of elders and parents, or are driven to testify as a result of abject poverty, as a means of putting food on their family’s table. The average income in the affected regions is less than $1 per day.257 As a consequence, children are generally required to contribute to the family livelihood by providing whatever testimony in exchange for money to feed the family or a good education and livelihood may be another factor.258 Finally, the ICC compensation and allowance scheme may act as an incentive for a witness to testify.259 From the moment a person joins the ICC witness protection programme, the issue of self-sufficiency has to be dealt with. The Victims and Witnesses Unit (VWU) must provide this person with the necessary support to enable him/her to achieve the goal of providing testimony.260 Sluiter has suggested that there is an increasing risk that a witness prospective testimony is used as a bargaining chip in obtaining a variety of benefits, such as financial compensation or (far-reaching) protective measures. The question indeed arises as to what incentive there is for a witness to come testify at the ICC, besides his/her desire to assist in the administration of justice. Failing any subpoena-threat, it is possible that witnesses try to get the best bargain on their testimony, and regard their testimony as a quid pro quo, which may seriously jeopardize that testimony’s credibility.261 Whatever the incentive for a witness to testify, I recognise that we are each born in a society where the non-moral and purely egoistic tendencies are 256 Graham Davies and Helen Westcott, ‘Investigative Interviewing with Children: progress and Pitfalls’ in Anthony Heaton-Armstrong ed. Witness Testimony, Psychological, Investigative and Evidential Perspectives (Oxford University press 2006) p. 155. 257 See Redress Victims Perpetrators or Heroes p. 7; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 138. 258 See chapter five on the ICC practice and jurisprudence. 259 More on this will be elaborately discussed in subsequent chapters 3, 4 and 5 respectively. See ICC Article 75; Rule 94; see also the UN Guidelines on Justice in Matters involving Child Victims and Witnesses stipulate that ‘child victims should, wherever possible, receive reparations in order to achieve full redress, reintegration and recovery; Sergey Vasiliev, ‘Artilce 63(3) and Personal Interests of Victims in the Emerging Practice of the ICC’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 634–690 at 637. 260 ICC: Summary Report on the Round Table on the Protection of Victims and Witnesses Appearing Before the International Criminal Court available at http://www.icc-cpi.int/ Menus/ICC/Structure+of+the+Court/Protection/ (last visited July 2010) p. 7. 261 Goran Sluiter, ‘I beg you, please come testify’ (2009) New Criminal Law Review 590 at 606.

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so much stronger than any altruistic, unselfish, humane tendencies.262 Selfinterest will come first for most witnesses causing them to disregard the value of truth. Mirjan Damaska in talking about factors that motivate human behaviour assumes the intuitively possible position that while the better angels of our nature have only a tenuous control on our behaviour and while evil cannot be educated out of the human heart, humans respond to both self interest and moral values.263 Self-interest could be the only spirit to move a particular witness to lie under oath and could therefore be linked to one of the reasons a witness decides to commit perjury. Even though witnesses represent a single society with a shared value and morality to see to it that justice and truth is achieved in reality they come from different communities, in the case of these international criminal trials witnesses come from different ethnic groups either the ethnic group targeted during the crime or ethnic group of the accused or again come from a different nation not affected by the crime. Thus there is a tendency that their testimony may not benefit others in the way envisaged by the cosmopolitan community. It may be argued that the whole point of witness testimony is that someone will be negatively impacted. However if the witness provides truthful testimony that negatively impacts an accused where such testimony results to assisting the Judges make the decision for the conviction of such an accused person then the cosmopolitan vision has been achieved. The witness has upheld his/her obligations to the Court to know the truth, to have credible evidence and also to the victims to get justice. Where it negatively impacts the accused as a result of the witness false testimony then action needs be taken by the Court to punish such a witness. No matter what interest lies beneath the reasons for them to provide testimony witnesses have an obligation they owe not only to the Court but also to the cosmopolitan community. The duties attached to witnesses, demonstrates the cosmopolitan communities’ commitment to protect fundamental universal values, whereby witnesses must behave in a moral manner that does not breach the rules. Hence, transgressions of the rules will provoke a response from the Court who is charged to sanction and act as a moral teacher.

262 Mirjan Damaska, ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329, 334. 263 Ibid.

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Argument for the ICC as a Moral Teacher

I earlier established that there is a cosmopolitan international community with shared values instantiated in the international criminal tribunals and that is what justifies the assertion of jurisdiction over witnesses for false testimony or other forms of contempt. There is a shared global identity that is built in the cosmopolitan community that witness crimes in this case false testimony needs to be responded to. Also, I have argued that cosmopolitanism justifies the moral legitimacy to the Court as its treaty and rules are meant to protect the rights of all and the principles enshrined in it are widely recognised. It’s content is shaped by the pertinent needs and concerns of the global community, the Statute and RPE create valuable practices worth engaging with as the laws and rules are morally permissible thus legitimate because they are morally correct. Its legitimacy derives from the moral authority of its framers, who gathered at Rome to legislate on the laws. It is worth specifying that, the formal character of laws and norms and their universal applicability have themselves deeply moral significance since they constitute a way of expressing the equality of people as citizens before the law. Embodied in law there is the principle of justice which in modern ethical conceptions competes with the principle of good in its claim to the position of founding category. And thus, just as morality has a legal dimension, so to legality possesses a moral dimension.264 Vlastimil Hala writes that for John Stuart Mill, one of the aims forbidden to legislators in a liberal democracy was the aim of legislating morality. Only legislation aimed at preventing behaviour harmful to others was proper; legislation aimed at promoting morality was as much condemned by Mill, as was paternalistically motivated legislation. Hala observes that the critique of Mill and post-Millian liberalisms is very simple, if something is morally good, right or just that gives each of us a reason to promote its attainment. If laws can be made that promote justice, there is good reason to make such laws. Following the work of John Austin, he observes that the world is better if it is morally better, and to the extent legislators can achieve that moral betterment through law, they should do so.265 These arguments could be analogized to the ICC, the motivation of the founders of the Court was to create a better world, they succeeded in doing this through the Statute which is a cosmopolitan constitution containing laws which are just, 264 Vlastimil Hala, ‘Morality and Legality: The Political Significance of their Relationship’, in Miloslav Bednár (eds.) Human Dignity: Values and Justice Czech Philosophical Studies III (Council for Research in values and Philosophy Book Series IV, IVA. Volume 18 1999) p. 4. 265 Ibid., p. 9.

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representing a shared value amongst all. The provision on truthful testimony as contained in Article 69(1) is a moral requirement that has been incorporated into the law clothed with sanctions pursuant to Article 70. These laws, and the respective rules found in the RPE are valid because their content is morally good and sound. It is this correct moral values and soundness, which validates the Court justification of authority and jurisdiction over witnesses. Arguably, certain moral principles become part of law even before they are expressed in legal holdings or statutes.266 A duty to tell the truth may be and usually is, satisfied without any reference to institutional rules at all.267 As earlier argued it has a universal content, people do accept the norm of providing truthful testimony as a witness as an accepted moral standard of behaviour and conduct. This ideal has been translated from laws of nature with the drafters incorporating it into the Statute thus becoming a rule of law. This principle only becomes valuable as a rule because it has been clothed with sanctions. It reflects arguments made that morality only exists as rules of positive law when they are clothed with legal sanctions by the sovereign in this case the ICC and other tribunals. Prior, to that they are merely rules set by habit or opinion and sanctioned by social means.268 Consequently, truthful testimony only becomes a rule of positive law if clothed with legal sanctions thereby establishing the validity and importance of the principle. The laws and rules coordinate the behaviour of witnesses before the ICC. Conformity to their obligation should be an inherent value, the law and rules should guide their behaviour and the courts should take charge of their application. Transgressions of the rules should provoke a response from the ICC who is charged to sanction. In a nutshell, as a cosmopolitan Court who furthers moral ideals, the ICC shall satisfy the moral requirement of truthful testimony as an asserted rule with a natural duty to obey by using its authority to sanction false witnesses. General trust in the Court would be earned if it upholds this cosmopolitan image, thereby enhancing its role as a moral teacher acting under the bounds of the rule of law. In closely approximating the rule of law the Court will also promote procedural fairness and equality before the law.269 It will guarantee other 266 Darrel Moellendorf, Cosmopolitan Justice (Westview Press 2002) p. 2. 267 Ibid., p. 1; Roland Pierik and Wouter Werner Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press 2010) p. 1. 268 Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) pp. 24–25; Brian Z. Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004) p. 95. 269 Lars Waldorf, ‘A Mere Pretence of Justice’: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal’, (2010) Fordham International Law Journal 1221, 1275–1276.

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procedural protections such as the search for the truth, fair trial for the accused, credibility of the Court’s proceedings and justice for victims. Witnesses are punished not only because their false testimony may have an adverse effect on the Court and others but also because it is inherently morally wrong to provide false testimony. It is thus morally good, right and just for the ICC to promote the requirement of providing truthful testimony and to sanction false witnesses hence preventing and protecting behaviour harmful to the Court as well as to others. The intent of incorporating provisions of truthful testimony clothed with sanctions thus enhances the cosmopolitan standing of the Court and sanctions confirm its moral legitimacy. It reinforces the Courts legitimacy as a moral/fair institution with an ability to punish even those who assist it in providing evidence. Noah Feldham argues that to be a legitimate legal system requires satisfying some basic moral requirements, the act of establishing a legal system that exercises coercive power subjects the system itself to certain moral duties.270 Those requirements will add up to a moral account of what justifies the very undertaking of doing law, of coercing and demanding compliance. This account does not focus on the duty to comply with a system that satisfies these moral requirements. Instead it focuses on the justifiability of coercing people who come into contact with the system.271 Hence the act of establishing a Court that exercises inherent authority subjects it to certain moral duties, among them the duty to impose sanctions for untruthful testimony. Arguably normative legal explains why contempt is relevant for endorsing truth. There is no possibility of recognising any normativity as law without authority having the right to say what is right and the capacity to interpret it as law.272 Meaning that the ICC has authority to impose what is morally right and interpret the law, as it ought to be by punishment where necessary. The justification for subjecting witnesses to its jurisdiction would derive from its cosmopolitan insight, the Judges should not only justify the punishment of witnesses on the non-consequential ground that he/she violated a legal command,273 but should also justify punishment on cosmopolitan grounds. 270 Noah Feldham, ‘Cosmopolitan Law?’ (2007) The Yale Law Journal 1024, 1062–1063. 271 Ibid. 272 See Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press 2001) pp. 24–25; Brian Z. Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004) p. 95. 273 See John Rawls, ‘Two Concepts of Rules’, (1955) Philosophical Review 3–32; Alon Harel, ‘Why only the State may inflict Criminal Sanctions: The Case Against privately inflicted Sanctions’ (2008) Legal Theory 113, 116.

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That is as a witness he/she has an obligation towards the Court and others, and as such need not act in ways that will harm but rather respect the rights of all. In having such an authority and jurisdiction over witnesses the ICC enhances itself as an institution that embodies moral ideals thus coercing morally adequate results.274 Also, the ICC will be enhancing the denunciation of the act and a call for witnesses to refrain from crimes that are not morally correct. In addition, the ICC’s authority and jurisdiction over witnesses is justified on the principle of promoting justice as fairness.275 The ICC’s cosmopolitan intent is represented in its open-ended positive global responsibility to promote universal norms and morality.276 Roach argues that any responsive global institution must first and foremost act in the best interests of justice and the global community. In this case a responsive ICC will hold fair trials, address the needs of the victims of human atrocities and refrain from judgements that would not serve the best interests of justice.277 This positive global responsibility I claim extends to witnesses, with the Judges and Prosecutor applying the law when a witness is false so as to achieve the Court’s responsibility of promoting universal norms, morality, fairness and justice. It is clear in essential international human rights instruments that conditions of trial fairness, principally represented in due process for the accused, identify justice in a procedural sense,278 measures of trial fairness for the accused to an extent rest in the hands of witnesses. Since testimony assists the Judges to decide cases it therefore rests upon them to determine whether such testimony is true or false. The ICC will pass the cosmopolitan test if it applies universal standard of justice to all. This application may occur in the form of investigation, prosecution and sanctioning by the Court or within State systems at the request of the Court under national implementing legislation.279 The Court shall also pass the cosmopolitan test, authority and credibility by protecting procedural and substantive rights, and regulating the conduct of witnesses thereby safeguarding

274 See Jack Goldsmith, ‘Liberal Democracy and Cosmopolitan Duty’, (2003) Stanford Law Review 1667, 1667 (footnote 14), 1670–1671. 275 Steven Roach, ‘Value Pluralism, Liberalism, and the Cosmopolitan Intent of the International Criminal Court’, (2005) Journal of Human Rights 475, 483. 276 Steven Roach, ‘Introduction Global Governance in Context’, in Steven Roach (eds), Governance, Order and the International Criminal Court (Oxford University Press 2009) pp. 2, 8, 21. 277 Ibid. 278 See Articles 10 and 11 Universal Declaration of Human Rights; Article 14 International Covenant on Civil and political Rights; Article 67 ICC Statute. 279 See chapter five on ICC implementing legislation.

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the integrity of the Court in achieving truth and justice. In so doing the ICC serves the interest of all, a system that regulates the behaviour of all. To conclude, if the Judges for instance rely on a false testimony that leads to an unjust conviction or acquittal, thus justice is not served and the cosmopolitan moral claim of the Court is brought into disrepute. If the Judges are to base life-altering decisions on the information communicated by witnesses then it is imperative that they impose criminal sanctions on false witnesses. They have an obligation to punish, as they are answerable to the provisions of the Statute and RPE. They offer a vehicle for realizing a cosmopolitan community in which each individual human being is truly valued as a unit of moral concern. As Judges representing the cosmopolitan court they should be committed to the equal moral worth of all, endorsing principles of justice, truth, fairness and respect for the rule of law that are concerned with the wellbeing of every individual person before the Court no matter whether as an accused, victim, witness or other parties to the proceedings. They should act as moral teachers using authority vested upon them by the global community through the Statute and assert their jurisdiction over witnesses. Hence ensuring that the cosmopolitan principles incorporated in the Statute and RPE are applicable in a fair and just manner. 1.6 Conclusion In this chapter I have developed my understanding of the cosmopolitan theory applying and defending a cosmopolitan reading of the structure of global governance and international institutions. The work concludes that the establishment of the ICC represents an expression of the cosmopolitan ideal in the international community. Consequently, the jurisdiction that the ICC exercises over witnesses can be explained by reference to the obligations that individuals owe each other in the global community, as well as the necessary requirements of justice. The chapter demonstrates and establishes the fact that the cosmopolitan grounding of the ICC justifies the imposition of duties and sanctions on witnesses. The chapter has established that witness allegiance should be owed first and foremost to the moral realm of all humanity to know the truth about the grave crimes of international concern so that, truth and justice is achieved by the ICC. Their account of evidence-based truth is essential in the credible functioning of the Court, the protection of its proceedings and judgments and that of the rights of all before it. On moral and applied fronts, truthful witness testimony underpins credible judicial decision-making and the legitimacy

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that flows there-from. False testimony is a serious crime that has to be dealt with seriously for the benefit of the ICC and the global community. Hence, false testimony harms not only the legitimate authority of the ICC but also individuals. More so the legitimate authority of the ICC and justice should be what pre-empts or overrides the right as well as the duty of States to bring about punishment for contempt witnesses.280 Hence, the ICC should act as a moral teacher asserting its jurisdiction and authority over witnesses while the global community must also universally condemn acts of perjury in order to ensure the proper prosecution of international crimes. As indicated earlier, the conceptual framework developed in this chapter shall be applied in the subsequent chapters to the constituent instruments, jurisprudence and practice of the ICTY, ICTR, SCSL and ICC. To examine and analyse the extent to which they exhibit cosmopolitan features. 280 Duty of states will be discussed in Chapter 5.

Chapter 2

International Criminal Tribunal for the Former Yugoslavia (ICTY) The success of ICTY trials has greatly depended on the willingness of witnesses to come to the Tribunal to testify. Their testimony has been the most important source of evidence, in the absence of documentary records. Witness testimony being the primary tool for presenting facts to the Judges, helping them to render justice for victims and establish the truth of events that took place during the conflicts in the Balkans in the 1990’s.1 As of early 2012, more than 4,300 witnesses have testified since the Tribunal’s first trial in 1996.2 In its first trial Tadic, the Judges heard 126 witnesses, 76 for the prosecution, and 40 for the defence and then an additional 10 for the prosecution in rebuttal.3 ICTY witnesses have declared it was their “moral duty” to testify before the Tribunal. As one witness put it, “It was my wish, my desire, and my moral obligation to my family to testify.”4 There was also the desire of witnesses to tell their stories. One witness said: “It wasn’t really revenge for Blaskic or anyone else. I went because of the humiliation I suffered. And I wanted the tribunal to know that this is what was done to me.”5 The witness ‘moral obligation’ to family to testify and to tell their stories demonstrates the common vision shared by the global community. On 25 May 1993, there was a common consciousness and vision amongst the States of the UN to ensure that the horrendous crimes committed during the Balkan 1  See ICTY website Witnesses available at http://www.icty.org/sid/158 (hereinafter, ICTY Witnesses) (last visited February 2013); Carla Del Ponte, ‘Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY’ (2006) Journal of International Criminal Justice 539, 553. 2  Witness Statistics available at http://www.icty.org/sid/10175 (last visited February 2013). 3  Prosecutor v. Tadic, Judgement, IT-94-1-T, 7 May 1997 paras 28–35; Prosecutor v. Blaskic, Judgment, IT-95-14-T, 3 March 2000, para. 19; Fourth Annual Report of the ICTY (1997) paras. 21–24; Sixth Annual Report of the ICTY (1999) para. 17; Goran Sluiter International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) p. 233. 4  Eric Stover The Witnesses: War Crimes and the Promise of Justice in The Hague (Human Rights Center University of California Berkeley, May 2003) pp. 55–73 (hereinafter, Stover Witness Report). 5  Ibid. para. 55.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004301955_004

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conflict should not go unpunished and perpetrators should be brought to justice.6 As indicated in Chapter one, this common moral obligation illustrates that we belong to a single community with a shared morality, one of shared principles through the establishment of the Tribunal.7 This chapter examines whether the Tribunal has made use of the cosmopolitan principles incorporated in its Statute and RPE. It demonstrates this through its practice and jurisprudence with regards to witnesses. Part one examines the procedures and practices taken by officials of the Tribunal through sourcing, modelling, proofing, protection etc. to ensure that witnesses present credible and reliable testimony. Part two discusses witness obligations towards the Tribunal, analysing relevant factors such as the various modes to present testimony and decisions on their credibility and reliability. Finally, part three examines and analyses the jurisprudence on witness contempt and sanctions. This process establishes in the conclusion of the chapter if the ICTY has exhibited cosmopolitan features, if it has exercised, judicial authority and jurisdiction over witnesses and its justification for imposing criminal sanctions on witnesses. 2.1

Witness Journey

The road to testify at the ICTY is usually a long process. The Tribunal has the duty to source, select and model the different types of witnesses. They do have the responsibility to prepare the witness for testimony and also to guarantee the witness right to protection. This section shall examine and analyse how the Tribunal has gone through the process. 2.1.1 Sourcing Throughout the years the ICTY has fulfilled its obligation to source and select witnesses to testify. International and local organisations have played an important role as intermediaries in the field, cooperating with ICTY investigators putting them in touch with important witnesses.8 Witnesses have travelled 6  See About the ICTY-Establishment available at http://www.icty.org/sid/319 (last visited February 2013); UNSC Resolution 827; see also UNSC Resolution S/Res/808 (1993) 22 February 1993. 7  See Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) p. 95; David Hirsh, Law against Genocide: Cosmopolitan Trials (Glasshouse 2003) xix. 8  Richard Goldstone, ‘A View from the Prosecution’ (2004) Journal of International Criminal Justice 380, 382.

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from across the world in order to testify before the Tribunal, most especially persons from the former Yugoslavia. More than 45 percent of witnesses have been from Bosnia and Herzegovina, 12 percent from Croatia, and 14 percent from Serbia. About a quarter of all witnesses called to testify are from countries outside of the former Yugoslavia.9 The first contact with a potential witness is likely to be made by an investigator or other member of the OTP. The reason being almost two-thirds of all witnesses have, to date, testified on behalf of the prosecution. More than a third have testified for the defence and two percent; have been called by the Chambers.10 Significantly, a decision is usually made regarding whether the witness is essential for the conduct of the trial.11 2.1.2 Modelling Many witnesses have been individuals who survived or witnessed atrocities or are persons who, because of their close association with an accused, are considered to be insider witnesses. Including many international witnesses present throughout the war in the former Yugoslavia, either in some official capacity or other has testified.12 This part shall distinguish the different types of witnesses.

9  Witness Statistics available at http://www.icty.org/sid/10175 (last visited February 2013, hereinafter witness statistics); International Criminal Court Assembly of States Parties Sixth Session New York 30 November to 14 December 2007 ICC-ASP/6/INF.2, 19 October 2007 (hereinafter, ICC sixth-session ICC-ASP/6/INF.2); ICC Second public hearing of the Office of the Prosecutor NGOs and Other Expertsm New York, 18 October 2006, p. 26 (hereinafter, ICC Second public hearing); Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, (1999) para. 133; Mark Harmon & Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings,’ (2004) Journal of International Criminal Justice 403, 406. 10  Ibid. 11  The ICTY Manual on Developed Practices Prepared in conjunction with UNICRI as part of a project to preserve the legacy of the ICTY (UNICRI Publishers 2009) pp. 16 & 21–24 (hereinafter, ICTY Manual on Developed Practices) available at http://www.icty.org/x/ file/About/Reports%20and%20Publications/ICTY_Manual_on_Developed_Practices.pdf (last visited November 2010). 12  Ibid. p. 20; John R.W.D. Jones, ‘The Gamekeeper-Turned-Poacher’s Tale’ (2004) Journal of International Criminal Justice 486, 490; Kristina D. Rutledge, “Spoiling Everything”— But for Whom? Rules of Evidence and International Criminal Proceedings’ (2003–2004) Regent University Law Review 151, 173; Stover Witness Report pp. 34–35.

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2.1.2.1 Crime-based Prosecutions have been to a considerable degree dependent on eyewitness testimony also known as crime-based.13 The bulk of these witnesses have been victims, they include people of all walks of life e.g. farmers, doctors, housewives, local politicians, mechanics, students, school children and many others.14 The Judges have heard them tell of what are often painful and tragic stories about what they saw and experienced.15 Thus they provide evidence as to fact, however in Gotovina; the Judges held that fact witnesses were not prevented from giving evidence of their opinions on certain matters.16 The defence had argued that prosecution witnesses who were not expert witnesses could not give evidence on whether objects targeted by artillery weapons were civilian or military targets. The Chamber ruled that, although the determination of whether a specific target is civilian or military is ultimately one to be made by the Judges, fact witnesses were not precluded from giving such opinions. The Chamber noted that, if the testimony of a witness contains an opinion or conclusion, the parties should explore the factual basis for that opinion or conclusion. The Chamber also implicitly acknowledged that certain witnesses are better placed to provide such opinions, noting that ‘witnesses have different backgrounds and different professional experiences which enable them to observe, understand, and interpret observations in different ways’.17 The Gotovina decision ensures that as fact finders the Judges obtain all evidence that will be relevant for them to determine justice and truth. Crimebased witnesses come from different works of life and can express themselves in different ways. Therefore the decision enables the witness to provide an opinion or conclusion to a fact and it is for the Judges to determine whether such opinion or conclusion is relevant and admissible. As will be examined 13  Prosecutor v. Tadic Decision on the Prosecution’s Motion Requesting Protective Measures for Victims and Witnesses, IT-94-1-T 10 August 1995 para. 23 (hereinafter, Tadic Decision on Protective Measures); see also ICTY Witnesses. 14  ICTY Voice of the Victim available at http://www.icty.org/sections/Outreach/ VoiceoftheVictims (last visited November 2010); Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia comes of Age: Some Observations on DayTo-Day Dilemmas of An International Court’, (2001) Washington University Journal of Law and Policy 87, 108; Carla Del Ponte ‘Investigation and Prosecution of Large Scale Crimes at the International Level: The Experience of the ICTY’, (2006) Journal of International Criminal Justice 539, 545. 15  Ibid.; see also ICTY Witnesses. 16  Prosecutor v. Gotovina et al., Oral Ruling, IT-06-90-T, Transcript 22 April 2008 pp. 1927– 1929 (hereinafter Gotovina Transcript 22 April 2008). 17  Ibid. p. 1928.

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subsequently, they do have the authority to determine the admissibility of witness evidence. 2.1.2.2 Expert-witness Experts come from a broad spectrum of professional backgrounds, official investigators sent from the UN and the ICTY, independent observers, historians or sociologists, aid workers or human rights advocates.18 Rule 94 bis governs expert testimony and provides for advance filing of the expert’s report.19 In Blagojevic, the Judges held that one of the distinctions between an expert witness and a fact witness is that due to the qualifications of an expert, he/ she can give opinions and draw conclusions and present them to the Judges.20 The party calling the expert-witness should satisfy the Judges that the expertwitness has at his/her disposal the special knowledge, experience, or skills needed to potentially assist the Judges in its understanding or determination of issues in dispute. The party who submits the expert-witness statement must also provide the information necessary for the Judges to appreciate whether the witness presented as an expert meets the definition mentioned above.21 In determining whether a particular witness meets these criteria, the Judges take into account the witness former and present positions. Including, professional experience through the reference to his/her curriculum vitae, scholarly articles, other publications or any other pertinent information about the witness.22 18  Kristina D. Rutledge, “Spoiling Everything” But for Whom? Rules of Evidence and International Criminal Proceedings’, (2003–2004) Regent University Law Review 151, 177; Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) American Journal of International Law 57, 81; Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia comes of Age: Some Observations on Day-To-Day Dilemmas of An International Court’, (2001) Washington University Journal of Law and Policy 87, 101. 19  I CTY Rules of Procedure and Evidence, available at http://www.icty.org/x/file/Legal%20 Library/Rules_procedure_evidence/IT032_rev44_en.pdf (last visited December 2012) (hereinafter, ICTY Rules). 20  Prosecutor v. Blagojevic et al., Decision on Prosecution’s Motion for Admission of Expert Statements, IT-02-60-T, 7 November 2003, para. 19 (hereinafter, Blagojevic Decision for Admission of Expert Statements). 21  Prosecutor v. Galic, Decision on the Expert Witness Statements Submitted by the Defence T-98-29-T 27 January 2003, p. 3 (hereinafter, Galic Decision on Expert Witness Statements). 22  Prosecutor v. Delic, Decision on Paul Cornish Status as an Expert, IT-04-83-T, 20 March 2008, para. 9; Prosecutor v. Dordevic, Decision on Vlastimir Dordevic’s Motion for Reconsideration or certification to Appeal Regarding Proposed Expert Mr Alexandar Pavic, IT-05-87/I-T, 23 April 2010, paras. 11–15.

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Furthermore, an expert-witness is expected to give his/her expert opinion in full transparency of the established or assumed facts he/she relies upon and of the methods used when applying his/her knowledge, experience or skills to form his/her expert opinion.23 He/she may not be authorised to offer opinion on the criminal liability of the accused a matter, which falls within the sole jurisdiction of the Chamber at the close of the trial.24 He/she may provide the Judges with any information useful to an evaluation of the facts, particularly, for a military expert, as regards the military structures, chain of command and disciplinary procedures of an army, and the military responsibility deriving from such provisions.25 Relying on his analysis of the documents provided by the party, the expert may validly present his submissions on the issue of subordination, which naturally falls within the field of expertise of a military expert, and that, in this context, a military expert may express his opinion on matters of law.26 Also, the Rules do not stipulate that expert evidence must only be founded upon facts in evidence, but that, on the contrary, it is inherent in expert evidence that such expertise is also based on facts not yet in evidence.27 It is for the Judges to determine whether the factual basis for an expert opinion is truthful and that determination is made in the light of all the evidence given.28 The weight to be attributed to expert evidence is to be determined by the Judges at the end of the trial and in light of all the evidence adduced, and an admission of the expert evidence does not necessarily mean that the Trial Chamber accepts its findings.29 In Popovic, the Judges held that when deciding whether to admit the evidence of an expert the question is whether the witness has sufficient expertise in a relevant subject area such that the Trial Chamber may benefit from hearing his/her opinion. If the answer to that question is yes, then the questions of objectivity, impartiality and independence become relevant to assess the weight to be accorded to that opinion evidence.30 Again in Popovic, Appeal Judges held that the mere fact that an expert witness is 23  Blagojevic Decision for Admission of Expert Statements, para. 19. 24  Prosecutor v. Hadzihasanovic et al., Decision on Report of Prosecution Expert Klaus Reinhardt, IT-01-47-T, 11 February 2004, p. 4. 25  Ibid.; Prosecutor v. Krstic, Judgement, IT-98-33-T, 2 August 2001, para. 621. 26  Ibid. 27  Prosecutor v. Brdanin, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, IT-99-36-T, 3 June 2003, p. 4. 28  Galic Decision on Expert Witness Statements p. 4; Prosecutor v. Delalic et al., Judgement, IT-96-21-A, 20 February 2001, para. 594. 29  Ibid. 30  Prosecutor v. Popovic et al., Decision on Defence Rule 94bis Notice regarding Prosecution Expert Witness Richard Butler, IT-05-88-T, 19 September 2007, paras. 26–27.

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employed by, or has connections to, the calling party does not disqualify him/ her as an expert.31 As long as there are sufficient prima facie indicia of reliability such that the evidence of the proposed expert has probative value, concerns related to connections between the witness and the calling party can be explored in cross-examination.32 The use of experts before the ICTY has come under considerable criticism. Experts provide the only method of effectively putting a particular event in context. According to Kristina Rutledge, as with many forms of evidence with minimal probative value or obvious hearsay content, the Tribunal tends to allow the testimony with the proviso that it can always exclude the evidence at a later time.33 Gregory McClelland observes, ICTY Judges are swayed more by expert witnesses’ testimonial demeanour than by the factual validity of their testimony.34 In Tadic for instance two expert witnesses were brought by each party to proceedings to establish elements of international armed conflict in the former Yugoslavia.35 Trial accounts described the Prosecutor’s expert witness as an unimpressive witness, whose testimony suggested a lack of confidence in his own theories. On cross-examination, the witness was induced to concede mistakes in his testimony and appeared to hold an anti-Serb bias, based on the tone of some of his writings.36 According to McClelland these concerns cast doubt on the “duelling experts” scenario as a means of reaching the truth.37 The Judges at the ICTY have an obligation to establish the truth and obtain justice. With the trials soon coming to an end, it is essential that the Judges ensure that the cosmopolitan authority bestowed on them by the global community is disposed of by ensuring that expert witnesses provide the most valid, reliable and credible expert evidence. Their testimony may have a major impact on the decisions taken by the Judges.

31  Prosecutor v. Popovic et al., Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, IT-05-88-AR.73.2, 30 January 2008, para. 31. 32  Ibid. 33  Kristina D. Rutledge, “Spoiling Everything”—But for Whom? Rules of Evidence and International Criminal Proceedings’ (2003–2004) Regent University Law Review 151, 178. 34  Gregory A. Mcclelland, ‘A Non-Adversary Approach to International Criminal Tribunals’ (2002) Suffolk Transnational Law Review 1, 33. 35  Michael P. Scharf, Balkan Justice The Story Behind the First International War Crimes Trial Since Nuremberg (Carolina Academic Press, 1997) p. 120. 36  Ibid. pp. 120–124 & 282–285. 37  Gregory A. Mcclelland, ‘A Non-Adversary Approach to International Criminal Tribunals’ (2002) Suffolk Transnational Law Review 1, 33.

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2.1.2.3 Insider-witness Insider witnesses have proven to be essential witnesses before the ICTY. Many of the Tribunal’s accused are high-level political, military or police leaders who are charged with planning crimes and ordering others to commit them. Persons who were close to the accused, called “insider witnesses,” can provide the court with evidence about their actions and state of mind. The evidence gained from their testimony is often crucial for establishing the degree of responsibility of the accused.38 In Kupreskic, the Appeals Chamber accepted the testimony of an insider witness who provided crucial information on the planning and preparation of an attack that included killing, forcible displacement of the civilian population and destruction of their village.39 Carla Del Ponte writes that despite the incontrovertible benefits of insider testimony, in the early days of the ICTY the Prosecution had very few insiders to call upon and an institutional hesitation to use them. As the first round of cases was completed and the ICTY prepared to prosecute a second round of serious or higher-ranking offenders issues related to the use of the testimony of insider-witnesses, who also accused or suspects, had to be resolved.40 The use of insider-witnesses by the ICTY is an appropriate practice. It enables the Judges not only to obtain all evidence necessary to adduce the guilt or innocence of the accused but also to better understand the motive and mind of the accused. The Judges should however be cautious when receiving such evidence. They should have due regard as to the motive of the insider witness as some of them may provide testimony which is false either to enable Judges acquit or convict the accused. 2.1.3 Cost/Inducement The effort to locate witnesses is costly. The Tribunal spends large amounts each year on travel and supply costs for witnesses, their security and their relocation including that of family.41 The OTP for instance organises and finances 38  See ICTY Witnesses. 39  Prosecutor v. Kupreskic et al., Appeal Judgement IT-95-16-A, 23 October 2001 paras. 2, 65–67 & 73–74 (hereinafter, Kupreskic Appeal Judgement); see also Prosecutor v. Milosevic, Transcript IT-02-54, 22 November 2002, pp. T13286–13287, 13292–13293. 40  Carla Del Ponte, ‘Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY’ (2006) Journal of International Criminal Justice 539, 544–545 & 555. 41  Annual Report of the International Criminal Court for the Former Yugoslavia for 2001, p. 17; David Wippmann, ‘The Costs of International Justice’ (2006) American Journal of International Law 861, 872–873 & 878–879; Mark Harmon & Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in

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the travel of investigators throughout the world to collect evidence and interview witnesses. In gathering information about a case, the investigators have to interview a much greater number of witnesses than actually appear in court during trials. This process, along with crime scene analysis and forensic investigation and examination, requires considerable resources from the Tribunal’s budget.42 The Tribunal relies on UN State members to pay in their contributions to the Tribunal’s budget. The witness moral duty to testify places an onus on governments and the UN to provide the Tribunal with adequate financial support to make such testimony possible.43 Again as earlier observed, the witness and State share the same vision and understanding to assist the Tribunal achieve justice. This shared vision should be a motivation for the States in the UN to fulfil their financial obligations so as to facilitate all costs that are necessary for the witness coming to assist the Tribunal. The Tribunal fulfils its duty to ensure that witness are supported for the purpose of testimony, witnesses receive allowances such as travel and accommodation. Once in The Hague they receive two payments from the Tribunal daily and attendance allowances.44 The daily allowance covers incidental expenses incurred while in The Hague. Meanwhile the attendance allowance is paid for the duration of their travel and stay in The Hague and the amount paid is set at the rate of a minimum UN salary in the country where they reside. This allowance is designed to compensate the witness for any lost wages, economic loss and the expenses at home for the time away.45 Also, consideration is given to the education and language needs of the witness and family while they are awaiting relocation under the care of the Victims and Witness Section (VWS).46

International Criminal proceedings’ (2004) Journal of International Criminal Justice 403, 406; Jarinde Temminck Tuinstra, ‘Assisting an Accused to Represent Himself; Appointment of Amici Curiae as the Most Appropriate Option’ (2006) Journal of International Criminal Justice 47; Jenia Iontcheva Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) Virginia Journal of International Law 529, 557. 42  The Cost of Justice available at http://www.icty.org/sid/325 (last visited February 2013). 43  Stover Witness Report p. 107. 44  ICTY Information Booklet for ICTY Witnesses (Victims and Witness Section 2007) p. 11 available at http://www.icty.org/x/file/About/Registry/Witnesses/witnesses_booklet_ en.pdf (last visited November 2010) (hereinafter Booklet for ICTY Witnesses); The Cost of Justice available at http://www.icty.org/sid/325 (last visited February 2013). 45  Ibid. 46  ICTY Manual on Developed Practices p. 203.

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2.1.4 Cooperation The ICTY is highly dependent on the collaboration of individual nations most especially States of the former Yugoslavia and the international community to investigate and obtain evidence in national territories, protect and guarantee the presence of witnesses, or fulfil similar functions.47 The obligation for States to cooperate with the ICTY finds its basis in Article 2948 which derives its authority from Resolution 827 providing that, “establishment of the International Tribunal on the basis of a Chapter VII decision creates a binding obligation on all States to take whatever steps are required to implement the decision. In practical terms, this means . . . to assist it in all stages of the proceedings to ensure compliance with requests for assistance in the gathering of evidence and hearing of witnesses. . .”49 In Karadzic it was held that on the basis of Article 29 and Rule 2(A),50 the Bosnian Serb administration is bound to cooperate.51 Also, Rule 58 provides that the obligation to cooperate with the Tribunal is to prevail over any legal impediment to the surrender or transfer of a witness to the Tribunal that may exist under the national law or extradition treaties of the State concerned. The ICTY has developed a particular practice provided for under Rule 70. It has allowed government agencies and certain NGOs and other organisations to 47  Prosecutor v. Delalic et al., Decision on Motion for Provisional Release Filed by the Accused Esad Land‘o, IT-96-21-T, 16 January 1997, para. 26; ICTY Second Annual Report UN Doc.A/50/365; S/1995/728, 23 August 1995, paras. 129, 191–193; Maximo Langer, ‘The Rise of managerial Judging in International Criminal Law’, (2005) American Journal of Comparative Law 835, 854; Carla Del Ponte, ‘Investigation and Prosecutionn of Large Scale Crimes at the International Level: The Experience of the ICTY’, (2006) Journal of International Criminal Justice 539, 556; Richard Goldstone, ‘A View from the Prosecution’, (2004) Journal of International Criminal Justice 380, 382; See Report of the International Tribunal for the Former Yugoslavia, UNGA Sixty-seventh session 1 August 2012 A/67/214-S/2012/592 pp. 16–18. 48  Statute of the International Criminal Tribunal for the Former Yugoslavia available at http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (last visited May 2013); see also Prosecutor v. Krstic, Binding Order to the Republika Srpska for the Production of Documents, IT-98-33-PT, 12 March 1999. 49  This obligation was reaffirmed in two Security Council resolutions adopted under Chapter VII of the Charter of the United Nations, resolution 1503 of 28 August 2003 and 1534 of 26 March 2004; See Major Marsha V. Mills, ‘War Crimes in the 21st Century’ (1999) Hofstra Law and Policy Symposium 47. 50  Rule 2 provides that ‘A State Member or non-Member of the United Nations or a selfproclaimed entity de facto exercising governmental functions, whether recognized as a State or not’. 51  Prosecutor v. Karadzic et al., Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-95-5-R61, IT-95-18-R61, 11 July 1996, para. 98.

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provide sensitive and confidential information for use.52 The Appeals Chamber in Milosevic ruled that the entire purpose of amending Rule 70 was to encourage States to cooperate with the Tribunal.53 The Chamber described the rule as creating an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and the information’s sources will be protected.54 The Tribunal is also known to have concluded bilateral agreements of a non-public character with a number of States concerning the protection of witnesses.55 Importantly, the international legal obligation, which lies upon all States members of the UN to cooperate with the ICTY, was given the strongest binding power within the competence of the UNSC.56 If a State fails to meet requests either by declining or providing a response that is not satisfactory to the ICTY, the president of the ICTY is entitled to report the matter to the UNSC which in turn may resort to the measures provided under Chapter VII of the UN Charter which includes embargos or diplomatic isolation.57 Furthermore, in the situation where a contempt indictment has been issued against a witness, the Tribunal can request State cooperation in serving the indictment on the alleged contemnor. Should the alleged contemnor refuse to appear before the Tribunal, arrest warrants can be issued and delivered to a State for service. Should a State fail to cooperate with the Tribunal in the enforcement of such orders, the mechanisms for reporting the state to the UNSC should be invoked.58 52  ICTY Manual on Developed Practices p. 20. 53  Prosecutor v. Milosevic, Confidential Decision on the Interpretation and Application of Rule 70, IT-02-54-A 23 October 2002, p. 19. 54  Ibid. 55  Prosecutor v. Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-95-14, 29 October 1997, para. 26 (hereinafter, Blaskic Croatia Review Decision); Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 66–67. 56  Carla Del Ponte, ‘Investigation and Prosecutionn of Large Scale Crimes at the International Level: The Experience of the ICTY’ (2006) Journal of International Criminal Justice 539, 556. 57  Ibid.; A letter and report from the ICTY Prosecutor was attached to the President’s letter to the SC UN doc. S/2004/353, 6 May 2004 paras. 11–18; Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 218–219. 58  Mark B. Harmon & Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encoutered by Prosecutors in International Criminal Proceedings’ (2004) Journal of International Criminal Justice 403, 425.

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2.1.5 Proofing and Familiarization Witness proofing is a developed practice before the ICTY.59 The practice is appropriate for the Tribunal’s administration of justice. It is a safeguard to the Tribunal receiving credible and reliable testimony. Hence, ensuring the rights of the accused and protecting the Tribunal’s evidence. In Limaj, the Judges ruled that the practice of proofing witnesses, by both parties, has been in place and accepted since the inception of the Tribunal. It is a widespread practice in jurisdictions where there is an adversary procedure. Substantive witness preparation “is likely to enable the more accurate, complete, orderly and efficient presentation of the evidence of a witness in the trial. The Chamber considered that this practice has a number of advantages for the due functioning of the judicial process.60 Proofing of witnesses by the prosecution enables differences in recollection, especially additional recollections, to be identified and notice of them to be given to the defence, before the evidence is given, thereby reducing the prospect of the defence being taken entirely by surprise.61 Moreover, an overview of recent proceedings before the ICTY shows that preparing witnesses, including the practice of putting questions to the witness concerning contradictions between prior statements, is an entire part of the proceedings.62 In Haradinaj, the Judges denied a defence application that the prosecution be obliged to audio-record all its proofing sessions, and found it adequate to instruct the prosecution to disclose to the defence ‘proofing notes’ taken by prosecution counsel during the proofing session, read back to the witness in his language, and signed by the witness.63 The Judges in Milutinovic reaffirmed that “discussions between a party and a potential witness regarding his/her evidence can, in fact, enhance the fairness and expeditiousness of the trial, provided that these discussions are a genuine attempt to clarify a witness’

59  Prosecutor v. Jelisić, Decision on Communication between Parties and Witnesses, IT-9510-T 11 December 1998 (hereinafter, Jelisic Communication Decision). 60  Prosecutor v. Limaj et al., Decision on the Defence Motion on Prosecution Practice of Proofing Witnesses, IT-03-66-T, 10 December 2004, p. 2 (hereinafter Limaj Practice of Proofing Witnesses). 61  Ibid. pp. 2–3. 62  Prosecutor v. Blagojevic, Decision on Prosecution’s Unopposed Motion for Two Day Continuance for the Testimony of Momir Nikolic, IT-02-60-T, 16 September 2003; Prosecutor v. Krajisnik, Order for Transfer of Detained Witness Pursuant to Rule 90bis, IT-0039-T, 13 March 2006; Prosecutor v. Krajisnik, Decision on Defence Motions to Prohibit Witness Proofing, IT-0039-T, 15 December 2006. 63  Prosecutor v. Haradinaj et al., Decision on Defence Request for Audio-Recording of Prosecution Witness Proofing Sessions, IT-04-84-T, 23 May 2007, para. 22.

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evidence”.64 The Judges found that “reviewing a witness’ evidence prior to testimony is a permissible practice under the law of the Tribunal and, moreover, does not per se prejudice the rights of the accused”.65 Furthermore, in Stanisic the Judges denied a prosecution motion seeking to bifurcate the testimony of one of its expert witnesses.66 The Trial Chamber said that calling the witness at the beginning of the prosecution case to testify about his report, and then later on to testify about a proposed addendum, would risk prejudicing the defence because the prosecution would interact with the witness between appearances.67 Potential repetition of discussion and challenges during the second appearance would be contrary to the practice of judicial economy.68 Finally, concerning witness familiarisation the Judges in Milutinovic held that the practice of witness familiarization not only poses no undue prejudice, but is also a useful and permissible practice.69 2.1.6 Right to Protection In the light of the particular nature of the crimes committed in the former Yugoslavia, it was necessary for the ICTY to ensure the protection of witnesses.70 Protective measures include nondisclosure of identity, orders to defence counsel to notify the prosecution of all contact with the witness, facial and voice distortion, taking testimony in closed session, assignment of pseudonyms, redaction of statements, in camera testimony, and full anonymity.71 64  Prosecutor v. Milutinovic et al., Decision on Ojdanic Motion to Prohibit Witness Proofing, IT-05-87-T, 12 December 2006 para. 16; NB: The Judges also held “the process by which the ICC Lubanga Chamber came to its decisions was not applicable to its determination of the issue” para. 13 (with regards to ICC witness proofing decision). 65  Ibid. para. 22. 66  Prosecutor v. Stanisic et al., Decision on Prosecution Motion for Leave to Bifurcate the Testimony of Expert Witness Christian Nielsen, Stanisic and Simatovic, IT-03-69-T 29 June 2009, para. 16. 67  Ibid. 68  Ibid. para. 17. 69  Ibid. para. 10; see also Rule 65 ter E(ii) & (iii) & G for the procedures followed by parties to submit list and summary of witnesses to testify. 70  Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN doc. S/25704, 3 May 1993, para. 108; Antonio Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’ (1997) European Human Rights Law Review 329, 350; Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia comes of Age: Some Observations on Day-To-Day Dilemmas of An International Court’ (2001) Washington University Journal of Law and Policy 87, 109. 71  Tadic Decision on Protective Measures para. 24; Emily Ann Berman, ‘In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in

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Furthermore the Judges have offered immunity from prosecution of witnesses by issuing safe conduct pursuant to Rule 54, because it deemed it reasonable in light of the importance for the administration of justice of having the witness physically present before the Tribunal.72 The Judges are mindful of their obligation to ensure effective protection for witnesses of both the prosecution and defence; that grounds exist therefore for applying mutatis mutandis the relevant provisions of Rules 69 and 75.73 The two interests that ought to be maintained are the right of the accused to a public hearing, and the right of the witness to protection in the interests of justice.74 The VWS is dedicated to supporting and protecting all witnesses, whether called by the prosecution, defence or Chambers pursuant to Rule 34.75 The VWS requests that a Memorandum of Understanding (MOU) be signed between International Criminal Tribunals’ (2005) New York University Law Review 241, 251; Christin B. Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia,’ (2000) North Carolina Journal of International Law and Commercial Regulation 183, 221–222. 72  Prosecutor v. Tadic Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link, IT-94-1-T, 25 June 1996 para. 12 (hereinafter, Tadic Decision to Summon and Protect Defence Witnesses). 73  Prosecutor v. Blaskic, Decision on the Defence Motion for Protective Measures for Defence Witnesses IT-95-14 30 September 1998; Tadic Decision on Protective Measures paras. 43, 55, 62–66 & 70–71. (See also Separate Opinion of Judge Stephen); Goran Sluiter International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) p. 246. 74  Prosecutor v. Delalic et al., Decision on the Prosecution’s Motion for the Redaction of the Public Record, IT-96-21-T, 5 June 1997, para. 28 (hereinafter, Delalic Decision on Redaction); Prosecutor v. Delalic et al., Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed “B” Through to “M”, IT-96-21-T, 28 April 1997, para. 35; Prosecutor v. Milosevic, Decision on Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69, IT-02-54, 19 February 2002, para. 26; Christin B. Coan ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia’ (2000) North Carolina Journal of International Law and Commercial Regulation 183, 220. 75  See ICTY Witnesses; Booklet for ICTY Witnesses p. 9; ICTY Manual on Developed Practices pp. 201 & 204; ICTY Witness Statistics; Stover Witness Report pp. 33 & 72; Shana Eaton, ‘Sierra Leone: The Proving Ground for Prosecuting Rape As a War Crime’ (2004) Georgetown Journal of International Law 873, 893–895; Julie Mertus, ‘When Adding Women Matters: Women’s Participation in the International Criminal Tribunal for the Former Yugoslavia’ (2008) Seton Hall Law Review 1297, 1309–1311; Sanja Kutnjak Ivkovic, ‘Justice by the International Criminal Tribunal for the Former Yugoslavia’ (2001) Stanford Journal of International Law 255, fn.224; Patricia M. Wald, ‘Trying war Crimes in International Courts’ (2003) International Journal of Legal Information 278, 287–288.

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the witness and the Protection Unit setting out the mutual rights and obligations of the VWS and the witness.76 The witness obligations include: he/she will provide the information and give the evidence as required by the parties, not commit any crimes, refrain from activities that might compromise his/ her security, accept and gives effect to the requests and directions made by the ICTY in relation to the protection provided and cooperate with the ICTY by avoiding wilful or negligent acts that might disclose to anyone his/her whereabouts.77 Witnesses and their families may also be admitted into the witness relocation programme.78 Finally, in case any party disclose the identity or any other identifying information of a protected witness, this party could be held in contempt of the Tribunal and be liable to a maximum penalty of 100,000 Euros, or a term of imprisonment of seven years or both.79 2.2 Obligations This part examines the duty of a witness to testify, it analysis the various methods used by the Tribunal to collect testimony and how the Judges assess the reliability and credibility of witness evidence. It then examines the duty of witnesses to follow the directions of the Tribunal. 2.2.1 Duty to Testify and Speak Truth Every witness has the duty to speak truth, in accordance to Rule 90(A). Before giving evidence, every witness takes the following solemn declaration: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth. Rule 90(B) is an exception to the Rule, it provides that a child who, in the opinion of the Chamber, does not understand the nature of a solemn declaration, may be permitted to testify without that formality, if the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the

76  ICTY Manual on Developed Practices p. 203. 77  Ibid. 78  Ibid. p. 202; Stover Witness Report pp. 7–8; Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 221; Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) American Journal of International Law 57, 62. 79  See Witness Statistics; ICTY Witnesses.

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truth. A judgement, however, cannot be based on such testimony alone.80 The rationae behind this is that a child has not taken the solemn declaration hence not bound in conscience to testify truthfully and faithfully. However child witnesses without taking an oath should be advised of the importance of providing truthful testimony and that if they lie while testifying they are guilty of perjury and will be punished. A witness has a duty to testify and should have a basic capacity to understand the questions put to him and give rational and truthful answers to those questions. In Jokic contempt case, the Judges held that a witness’s duty to testify is a basic principle of the Tribunal as a judicial institution and ‘goes to the heart of the notion of justice.81 The duty ensures that evidence is available for the proper administration of justice and is subject to only a few exceptions, such as the right against self-incrimination, which are to be determined solely by the relevant Chamber and not by the witness. Pursuant to Rule 90(E) a witness may object to making any statement, which might tend to incriminate him/ her. The Chamber may, however, compel the witness to answer the question. Testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony. The Rules do not provide a standard to be relied upon for determining a witness competency to testify. The Judges have however considered the “plain meaning” of the phrase, finding that it “requires that the proposed witness has a basic capacity to understand the questions put to him and give rational and truthful answers to those questions. The Judges have held that this approach is broadly similar to that set out in Rule 90(B), dealing with the testimony of children, which focuses on the ability of a child witness “to report the facts of which the child has knowledge and understands the duty to tell the truth”.82 There is no established standard for a witness’ fitness to testify in the jurisprudence of the Tribunal. The question should come down to whether the witness’ evidence will have probative value and is in line with Rule 89(C) which sets the standard for the admission of evidence before the Tribunal.83 A health condition for instance could only disqualify a witness and undermine the 80  See supra sections on contempt of perjury for further discussion on this. 81  Contempt proceedings against Dragan Jokic, Judgement on allegations of contempt, IT-05-88-R77.1, 27 March 2009, para. 25 (hereinafter, Jokic Contempt Trial Chamber judgement). 82   Jokic Contempt Appeal Judgement Contempt Proceedings against Dragan Jokic, Judgement on Allegations of Contempt, IT-05-88-R77.1-A, 25 June 2009, para. 35 (hereinafter, Jokic Contempt Appeal Judgement). 83  Ibid.

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capacity to testify if it has a ‘substantial effect on the credibility of the witness, and consequently empty his evidence from having any probative value.’84 Furthermore, concerns for the safety of witnesses or their families does not automatically override the duty to testify because they can be addressed by other mechanisms and the Judges are vested with the authority to apply appropriate protective measures.85 Also, unwillingness or fear of implicating others does not provide a reasonable excuse for refusal to testify.86 2.2.1.1 Methods of Obtaining Credible Testimony There are several ways by which ICTY Judges obtain evidence from witnesses, the rules makes it possible that even if a witness is unable to come to the seat of the Court his/her testimony could be taken in a different manner so as to enable the Judges have all the facts to ascertain the truth and assist it to decide cases. In accordance with Rule 89(F) the Judges may receive the evidence of a witness orally or, where the interests of justice allow, in written form. Rules 95 prohibits admission of evidence “obtained by methods which cast substantial doubt on its reliability” or which “would seriously damage the integrity of the proceedings.” Pursuant to Rule 90(F) the Judges shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth; and avoid needless consumption of time. The general admissibility of evidence is governed by Rule 89(C)–(D), which provides a Chamber “may admit any relevant evidence which it deems to have probative value” and may exclude evidence “if its probative value is substantially outweighed by the need to ensure a fair trial”. These requirements must be met in any case.87 A Chamber may also admit any relevant evidence that it deems to have probative value and request verification of the authenticity of evidence obtained out of court. The various methods of obtaining testimony are: 2.2.1.1.1 Live-testimony In any criminal justice system, most evidentiary weight is attributed to live testimony in the courtroom, allowing the trial Judges to directly assess the 84  Jokic Contempt Trial Chamber judgement, para. 28. 85  Ibid. para. 25. 86  Ibid. para. 30. 87  Prosecutor v. Sikirica et al., Decision on Prosecution’s Application to Admit Transcripts Under Rule 92 bis, IT-95-8-PT, 23 May 2001, para. 3 (hereinafter, Sikirica Decision to Admit Transcripts under Rule 92bis).

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witnesses’ reliability.88 It has been emphasised in Delalic that ‘it cannot be stressed too strongly that the general rule is that a witness must physically be present at the seat of the Tribunal. This is intended to ensure confrontation between the witness and the accused and to enable the Judges to observe the demeanour of the witness when giving evidence’.89 As originally drafted, ICTY Rules reflected the view that the evidence of a witness was the oral testimony given by that witness. Progressively, by process of amendment, there has been a shift away from that view towards an acceptance that, at least in some situations, the evidence of a witness may be received although not given orally before the Tribunal. Thus the Rules no longer provide for the invariable view that the evidence of a witness must be given orally.90 2.2.1.1.2 Video-link Testimony In exceptional circumstances, in the interest of justice the Judges authorise testimony via video-link.91 Rule 81 bis provides at the request of either party, the Judges may order, if consistent with the interests of justice; that proceedings be conducted by way of video-conference link. The criteria underlying the interests of justice are that the witness must be unable or have good reasons to be unwilling, to come to the Tribunal; the testimony of the witness must be sufficiently important to make it unfair to the requesting party to proceed without it and; lastly, the accused must not be prejudiced in the exercise of his/ her right to confront the witness.92 The Judges consider this legal standard to mean that a witness who is unwilling to come to the Tribunal to give evidence must provide the Chamber with an adequate basis for his unwillingness.93 88  Prosecutor v. Aleksovski, Appeals Judgement, IT-95-14/1-A, 24 March 2000, paras. 62–64. 89  Prosecutor v. Delalic et al., Decision on the Motion to Allow Witnesses K, L, and M to give their testimony by Means of Video-Link Conference, IT-96-21, 28 May 1997, para. 15 (hereinafter, Delalic Decision to give Video-link Testimony); Tadic, Decision to Summon and Protect Defence Witnesses para. 19. 90  See former Rule 90(A); Prosecutor v. Limaj et al., Decision on Prosecution’s Motions to Admit Prior Statements as Substantive Evidence, IT-03-66-T, 25 April 2005, para. 20 (hereinafter, Limaj Decision to Admit Prior Statements). 91  Tadic, Decision to Summon and Protect Defence Witnesses para. 19; Kevin R. Gray, ‘Evidence before the ICC’, in Dominic McGoldrick Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) 287–313 at 310. 92  Prosesutor v. Haradinaj et al., Decision on Prosecution’s Motion for Testimony via videolink for Witness 54, IT-04-84-T, 7 February 2007, para. 5; Delalic Decision to give Videolink Testimony para. 17. 93  Prosecutor v. Milutinovic et al., Decision on Sainovic Motion Requesting Testimony via Video-conferencing Link, IT-05-87-T, 3 August 2007, para. 4.

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Guidelines have been provided to ensure that witness testimony given by video link is reliable and practicable. They include matters such as the choice of venue for recording and transmission, the venue must be conducive to the giving of truthful and open testimony; the appointment and attendance of officers to ensure that the testimony is given freely and voluntarily, the ability for the witness, the questioner and the Court to see each other, and subjecting the witness to the solemnity of the proceedings, including liability for perjury as if the witness had given evidence within the courtroom.94 In Stanisic it was held that any statement made under solemn declaration by the witness shall be treated as having been made in the courtroom and the witness shall be liable to prosecution for perjury in exactly the same way as if he/she had given evidence at the seat of the Tribunal.95 Video-conferencing is, in actual fact, an extension of the Trial Chamber to the location of the witness. The accused is neither denied his right to confront the witness, nor does he lose materially from the fact of the physical absence of the witness. It not only permits the Judges to hear the testimony of a witness who is unable or unwilling to present evidence before the Court, it also permits the Judges to pose questions in order to clarify evidence given during testimony, to observe the demeanour of the witness while giving evidence and it allows for the defence to cross-examine the witness.96 Video-conferencing therefore allows the Judges to assess the credibility and reliability of the testimony in the same manner as for a witness in the courtroom. Gotovina Judges held that it should be given as much probative value as testimony presented in the courtroom.97

94  Prosecutor v. Milutinovic et al., Decision on Sainovic Motion for Video-conference link for Dusan Matkovic, IT-05-87-T, 23 August 2007, para. 5; Tadic, Decision to Summon and Protect Defence Witnesses para. 22; Delalic Decision to give Video-link Testimony paras. 15 & 18; see also Analisa Ciampi, “Other forms of Cooperation,” in A. Cassesse, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, (Vol. II, Oxford University Press 2002) 1705–1747 at 1718, fn.35; Donald K. Piragoff ‘Article 69, Evidence’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck 2008) pp. 1301–1336 at 1316. 95  Prosecutor v. Stanisic et al., Decision Granting Prosecution Motion for Testimony of Witness ST244 to be heard via Video-Conference Link, IT-08-91-T, 11 November 2010, para. g. 96  Delalic Decision to give Video-link Testimony para. 15. 97  Prosecutor v. Gotovina et al., Reasons for Decision granting Prosecution’s Motion to Cross-examine four proposed Rule 92bis Witnesses and Reasons for Decision to hear the Evidence of those Witnesses via Video-Conference Link, IT-06-90-T, 3 November 2009, paras. 7–8.

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2.2.1.1.3 Deposition Rule 71(A) gives broad discretion to a Trial Chamber to permit evidence by way of deposition ‘where it is in the interests of justice to do so’.98 Deposition evidence may be taken either at or away from the seat of the Tribunal, and it may also be given by means of a video-conference.99 According to Sluiter, evidence by deposition carries the least weight, the rationale behind the reluctance to take evidence by deposition lies in its diminished reliability compared to live testimony and in the difficulty, in some circumstances, to protect the right of the accused to confront the witness.100 However at the ICTY, witnesses may only be heard pursuant to Rule 71 if the requesting party can make a showing that the circumstances warrant it. Importantly, it is the right of an accused, pursuant to Rule 71(C) to have his counsel present so to cross-examine the witness.101 In the exercise of its discretion pursuant to Rule 71 the Judges have been guided by the principle that witnesses proposed for deposition will not present eyewitness evidence directly implicating the accused in the crimes charged, or alternatively, their evidence will be of a repetitive nature in the sense that many witnesses will give evidence of similar facts.102 In exercising this discretion a balance must be struck between permitting a reasonable degree of repetitive testimony to be given by way of deposition where it covers similar facts to testimony presented by a reasonable number of witnesses appearing live before the Judges and testimony that is unduly repetitive, and therefore unnecessary.103 Naletilic Chamber held that the admissibility of testimony by deposition might be dependent on the extent to which the parties would be prejudiced. It is evident that evidence given by a witness who appears in person to testify carries more weight than the other possibilities.104 98  Prosecutor v. Perisic, Filing of Public redacted and Corrected version of 2 December 2008 Decision for Deposition pursuant to Rule 71, IT-04-81-T, 10 February 2009, paras. 6–7; Prosecutor v. Naletilic et al., Decision on Prosecutor’s Motion to take Depositions for use at Trial (Rule 71) IT-98-34-PT, 10 November 2000, p. 4 (hereinafter, Naletilic Decision on Depositions). 99  Rule 71(D). 100  Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) p. 238. 101  Prosecutor v. Stanisic et al., Decision on prosecution Motion for Deposition pursuant to Rule 71, IT-03-69-PT, 26 May 2008, para. 4. 102  Ibid. p. 5. 103   Prosecutor v. Naletilic et al., Decision on Prosecutor’s Motion to take Additional Depositions for use at Trial (Rule 71), IT-98-34-PT, 5 June 2001, p. 3. 104  Ibid. p. 5.

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2.2.1.1.4 Witness Statements/Transcripts Rule 92bis permits the Judges to dispense with the attendance of a witness in person and instead admit the written statement or transcript of previous testimony of a witness in lieu of oral testimony where the evidence goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.105 The Rules do not define what constitutes a witness statement however in Blaskic it was held the usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.106 Rule 92bis replaced Rule 94ter, which allowed for departure from the principle of in-court testimony but provided for “strict procedural protection”, namely that affidavits be signed in accordance with the law and procedure of the State in which they are signed. It is admissible only if filed prior to the live testimony of the witness through whom they are tendered as corroboration for a fact in dispute testified to by the live witness. Departure from the precise terms of Rule 94ter was permitted if it was not “more than of a technical procedural nature.”107 This rule no longer exists. Rule 92bis is concerned with one very specific type of hearsay, namely written statements given by prospective witnesses for the purposes of legal proceedings. It is designed to expedite the proceedings on matters that are not pivotal to the case, by avoiding the need to call and examine the witness and admitting witness written statement as

105  Prosecutor v. Tolimir, Decision on Prosecution’s Motion for admission of Written evidence pursuant to Rules 92bis and 94bis, IT-05-88/2-T, 7 July 2010, para. 27 (hereinafter, Tolimir Rule 92bis and 94bis Decision); see also Patricia Wald, “Dealing with Witnesses in War Crimes Trials: Lessons from the Yugoslav Trials,” (2002) Yale Human Rights and Development Law Journal 217, 227; Daryl A. Mundis, ‘Current Developments at the Ad Hoc International Criminal Tribunals’, (2003) Journal of International Criminal Justice 197, 217; Gregory S. Gordon, ‘Toward an International Criminal Procedure: Due Process Aspirations and Limitations’, (2007)Columbia Journal of Transnational Law 635, 684; Michael P. Scharf & Ahran Kang, ‘Errors and Missteps: Key Lessons The Iraqi Special Tribunal can Learn from the ICTY, ICTR and SCSL’, (2005) Cornell International Law Journal 911, 941–942; Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’, (2003) California Western International Law Journal 47, 73–75. 106  Blaskic, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, IT-95-14-A, 26 September 2000, para. 15. 107  Prosecutor v. Kvocka et al., Decision on the Prosecution Notice of Affidavit Evidence, IT-98-30-PT, 30 October 2000; Cristian Defrancia, ‘Due Process in International Criminal Courts: Why Procedure Matters’, (2001) Virginia Law Review 1381, 1428.

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substantive evidence in lieu of witness oral evidence.108 Issues related to the reliability of such hearsay evidence must be given due consideration.109 Evidence in written form may be permitted where the interests of justice allow provided that such evidence is probative and reliable.110 The Rules and jurisprudence determining whether the Judges can admit evidence pursuant to Rule 92bis involves a six part analysis, which makes it possible for the Judges to obtain credible and relevant evidence. The Rule 92bis material must be relevant and have probative value; the Judges must verify that the written statement or transcript does not concern the acts and conduct of the accused; the Judges must evaluate the statement or transcript’s contents pursuant to the discretionary factors outlined in Rule 92bis(A); even if all the requirements to Rule 92bis are met the Judges may decide in its discretion to require the maker of the statement to appear for cross-examination and finally once the written statements and transcripts are deemed admissible the Judges must decide whether to admit associated exhibits if any.111 The admission of evidence is always subject to “the interests of justice”, which includes keeping the case at a manageable size.112 Rule 92bis was primarily intended to be used to establish “crime-base” evidence, and not the acts and conduct of the accused thereby providing evidence to establish an element for liability under Article 7(3).113 The Rule provides that the statement must be verified by the witness’s declaration of its truthfulness and witnessed by an officer of the Tribunal or an authorized person in the country where it was taken. The Judges have a duty to ensure that the requirements for the admission into evidence of witnesses’ statements and relevant attachments pursuant to Rule 92bis are

108  Limaj Decision to Admit Prior Statements para. 15. 109  Blagojevic Decision on Prior Testimony para. 15. 110  Galic, Decision on Interlocutory appeal concerning Rule 92bis(C), IT-98-29-AR73.2, 7 June 2002, para. 12 (hereinafter Galic Rule 92bis(C) Interlocutory Appeal); Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, IT-95-14/1-AR73, 16 February 1999, para. 15 (hereinafter Aleksovski Decision on Admissibility of Evidence). 111  Prosecutor v. Stanisic et al., Decision on Prosecution’s Motions for Admission of Written Evidence pursuant to Rule 92bis, IT-03-69-T, 7 October 2010, para. 29 (hereinafter, Stanisic Rule 92bis Decision). 112  Prosecutor v. Krajisnik, Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, IT-00-39 & 40-PT, 19 July 2001, p. 2. 113  Prosecutor v. Blagojevic et al., First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant To Rule 92bis, IT-02-60-T, 12 June 2003, para. 12 (hereinafter, Blagojevic Decision on Prior Testimony).

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met, and that the application of the Rule does not prejudice the rights of the accused envisaged in Article 21.114 Furthermore, the Rule does not supplant or modify the general requirements for the admissibility of evidence set out in Rule 89(C)–(D) mentioned above.115 In Galic the Judges held that deciding on admission of Rule 92bis statements, they must determine whether the statement is relevant evidence which it deems to have probative value, within the meaning of Rule 89(C) and may exclude evidence “if its probative value is substantially outweighed by the need to ensure a fair trial”, pursuant to Rule 89(D).116 In assessing the statements’ probative value, a Chamber shall consider the degree of precision of the information provided as well as whether the information is based on first-hand knowledge or hearsay.117 In Mejakic it was ruled; where a statement is capable of admission under Rule 92bis the Judges must still exercise discretion whether to exclude it, or determine whether evidence admitted in written form requires the witness to attend for cross-examination, both matters best left for determination by the Judges trying the case.118 Rule 92bis (A) provides a non-exhaustive set of factors in favour and against admission of the statement in lieu of viva voce testimony.119 The factors listed provide guidance to the Judges in respect of its use of discretion when deciding upon admission of evidence in the form of a written statement.120 The Appeals Chamber, in Galic, clarified the scope of Rule 92bis by stating that “where the evidence is so pivotal to the prosecution case, and where the 114  Prosecutor v. Brdanin, Decision on Prosecution’s Motion for Admission of Statements Pursuant to Rule 92bis—Bosanski Novi Municipality, IT-99-36-T, 17 January 2003 (hereinafter, Brdanin Decision on Admission of Statements Pursuant to Rule 92bis). 115  Prosecutor v. Milosevic, Decision on Prosecution’s Request to have Written Statements Admitted Under Rule 92 bis, IT-02-54-T, 21 March 2002, para. 6 (hereinafter, Milosevic Decision to have written statements admitted under Rule 92bis). 116  Prosecutor v. Galic, Decision on the Prosecution’s Request for Admission of Rule 92 bis Statements, IT-98-29-T, 26 July 2002, para. 15. 117  Ibid. para. 16. 118  Prosecutor v. Mejakic et al., Decision on Prosecution’s Motion for Admission of Trial Transcripts and Statements Pursuant to Rule 92bis and Rule 89(F) and Protective Measures, IT-02-65-PT, 22 October 2004, pp. 3–4 (hereinafter, Mejakic Decision for Admission of trial Transcripts). 119  Prosecutor v. Hadzihasanovic et al., Decision on Prosecution Application Pursuant to Rule 92bis (A) of the Rules, IT-01-47-T, 4 February 2004, p. 4. 120  Prosecutor v. Galic, Decision on Prosecution’s Application to Have Witness Barry Hogan Added to Its Witness List and His Evidence Admitted Pursuant to Rule 92 bis, IT-98-29-T, 2 August 2002, p. 3.

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person whose acts and conduct the written statement describes is so proximate to the accused, the Judges may decide that it would not be fair to the accused to permit the evidence to be given in written form.”121 Thus, there are three steps in any decision under Rule 92bis: Whether the transcript is capable of admission, if capable of admission, whether there are any other reasons why, in the exercise of the Judges discretion, the transcript ought not to be admitted; and if the transcript is admissible, whether the witness whose evidence is contained in the transcript should be required to appear for cross-examination.122 Pursuant to Rule 92bis(C), the Judges may require the witness who gave the written statement or whose testimony is recorded by the transcript to appear for cross-examination. Once it is determined that the witness must appear for cross-examination, the admission of any prior statements or testimony is governed by Rule 92ter.123 In Perisic the Judges emphasised its discretionary power in determining whether there is a need for a witness to appear for cross-examination pursuant to the Rule.124 It is at their discretion to admit a written statement or transcript without calling the witness to appear for crossexamination. In Limaj it was held that a right to cross-examination should be granted if the statement touches upon a critical element of the prosecution’s case, or, to a live and important issue between the parties, as opposed to peripheral or marginally relevant issue.125 However, when a written statement touches upon the very essence of the prosecution case against the accused, the witness should be available for cross-examination. The cumulative nature of the evidence, sought to be admitted, in written form is also a factor in determining whether to admit a witness statement with cross-examination.126

121  Galic Rule 92bis(C) Interlocutory Appeal para. 3; See Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) California Western International Law Journal 47, 79. 122  Mejakic Decision for Admission of trial Transcripts, p. 3; Milosevic Decision to have written Statements Admitted under Rule 92bis, paras. 16–18 & 27. 123  Stanisic Rule 92bis Decision, para. 35. 124  Ibid.; Prosecutor v. Perisic, Decision of Mr. Perisic’s Motion for the Admission of Evidence pursuant to Rule 92bis regarding the Prosecution Motion to Reopen, IT-04-81-T, 14 December 2010, para. 17. 125  Limaj et al., Decision on Prosecution’s Third Motion for Provisional Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis, IT-03-66-T, 9 March 2005, para. 6. 126  Ibid. para. 6; Tolimir Rule 92bis and 94bis Decision, para. 34; Sikirica, Decision to Admit Transcripts under Rule 92bis paras. 4 & 11; Gregory S. Gordon, ‘Toward an International Criminal Procedure: Due Process Aspirations and Limitations’ (2007) Columbia Journal

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Furthermore, a party cannot be permitted to tender a written statement under Rule 89(C) in order to avoid the stringency of Rule 92bis.127 The purpose of Rule 92bis was to restrict the admissibility of this very special type of hearsay to that which falls within its terms. If the hearsay evidence sought to be admitted consists of written statements given by prospective witnesses for the purposes of legal proceedings, then it is admissible only if it complies with Rule 92bis, including the availability of the witnesses for cross-examination if the Judges so order.128 Rule 92bis is the lex specialis, which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C). Where it is applicable, the requirements must be met by the prosecution in order for the Judges to admit evidence pursuant to Rule 89.129 Also, a written statement given by prospective witnesses to ICTY investigators or others for the purposes of legal proceedings can be received in evidence notwithstanding its non-compliance with Rule 92bis, where there has been no objection taken to it; where it has otherwise become admissible, where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.130 Where the witness is present before the Court and orally attests to the accuracy of the statement, the evidence entered into the record, cannot be considered to be exclusively, written within the meaning of Rule 92bis. The testimony of the witness constitutes a mixture of oral and written evidence. The appearance of the witness in court to attest to a written statement is a crucial factor, which renders Rule 92bis inapplicable. The fact that a witness may merely give a brief oral statement to the effect that the written statement is accurate does not alter this conclusion.131 With respect to the admissibility of part of the written statement of a witness, while the Judges have discretion to admit all or part of such statements, in those instances where the part of the statement not tendered modifies or qualifies the part that is tendered, or where the excluded portion contains information relevant to the credibility of the witness, it will be necessary to admit those parts of the statement as well.132 Finally, in the event that a of Transnational Law 635, 685; Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) California Western International Law Journal 47, 75. 127  Galic Rule 92bis(C) Interlocutory Appeal para. 31. 128  Prosecutor v. Milosevic, Appeals Decision on Admissibility of Prosecution Investigator’s Evidence, IT-02-54-AR73.2, 30 September 2002, para. 18 (hereinafter, Milosevic Appeals Decision on Admissibility of Investigator’s Evidence). 129  Ibid. para. 9. 130  Ibid. paras. 14 & 18. 131  Ibid. para. 16. 132  Galic Rule 92bis(C) Interlocutory Appeal para. 46.

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written statement is sought for admission under Rule 92bis, the written statement must comply with the requirements of Rule 92bis (B): A written statement must have a declaration attached wherein the person making the written statement attests to its truthfulness. The declaration must be witnessed and correctly verified by an appropriate person either a person authorised to witness such a declaration in accordance with the law and procedure of a State or a presiding Officer appointed by the ICTY Registrar for that purpose.133 It is however clear from the history of the Tribunal’s amendments of the provisions on written testimony that live in-court testimony, while preferred, is not always required. Rule 92bis has been described as having “a dramatic impact on the way in which parties, and in particular the prosecution, seek to present their cases before the ICTY”.134 2.2.1.1.4.1

Unavailable Persons

Rule 92quater allows the admission of written statements, in lieu of oral testimony, when witnesses are unavailable due to death, disappearance, or medical condition, if the Judges find from the circumstances in which the statement was made and recorded that it was reliable. The Judges are to be satisfied that the declarant was dead or that the proponent of the written statement could not be located notwithstanding reasonable diligence to locate the witness or that the witness is unable to give viva voce evidence due to a physical or mental condition.135 The following factors are taken into consideration when assessing the reliability of evidence presented pursuant to Rule 92quarter(A) (i) including the circumstances in which the statement was made and recorded notably whether the statement was given under oath; whether the statement was signed by the witness with an accompanying acknowledgement that the statement is true to the best of his/her recollection and whether the statement was taken with the assistance of an interpreter duly qualified and approved by the Registry of the Tribunal. In addition, whether the statement has been 133  Stanisic Rule 92bis Decision, para. 34. 134  Gideon Boas, ‘Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court’ (2001) Criminal Law Forum 167, 176; Megan A. Megan A. Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) California Western International Law Journal 47, 78; Michael P. Scharf & Ahran Kang, ‘Errors and Missteps: Key Lessons the Iraqi Special Tribunal can Learn from the ICTY, ICTR and SCSL’ (2005) Cornell International Law Journal 911, 942 Patricia M. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia comes of Age: Some Observations on Day-To-Day Dilemmas of An International Court’ (2001)Washington University Journal of Law and Policy 87, 111–112. 135  Galic Rule 92bis(C) Interlocutory Appeal para. 33.

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subject to cross-examination, whether the statement, in particular an unsworn statement never subject to cross-examination relates to events about which there is other evidence and other factors such as the absence of manifest or obvious inconsistencies in the statement.136 A deceased written statement may be admitted provided that the Judges are satisfied on a balance of probabilities that the written statement was made by such a person and found from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.137 In Kordic the Appeals Chamber reversed a Trial Chamber decision for admitting the written statement of a deceased witness on a potentially critical fact issue. The statement had been, taken by the Prosecutor’s investigator in 1995, and the witness had died in the interim. The witness had not sworn to the statement and had not been subject to cross-examination. The Judges ruled that these factors went to the weight to be given it, not to its admissibility, and allowed it into the record under Rule 89(B) setting out probity and relevance as the only criteria for admission.138 They held that no equivalent guarantee of reliability could be found here; and reliability is relevant to admissibility not just to the weight of evidence. Thus, a totally unreliable statement is probative of nothing. Even under Rule 89(B), the precedents on admitting witness transcripts had involved testimony already subject to cross-examination and given under oath. The method in which this particular statement was taken also contributed to its unreliability: the investigator did not speak Croatian, the witness’ native tongue, and had to rely on the translators’ version of the witness’ answers to his questions; the statement was written in English (even though the translator’s own native language was Dutch), and orally translated back

136  Prosecutor v. Seselj, Decision on Prosecution Motion for Reconsideration of the Decision on 7 January 2008 Rejecting the Admission of Milan Babic’s Testimony, IT-03-67-T, 10 December 2010, para. 31. 137  Prosecutor v. Milosevic, Decision on Prosecution Motion for Admission of Written Statements of Deceased Witnesses Ivan Rastija, Bosko Brkic, and Stana Albert Pursuant to Rule 92bis(C), IT-02-54-T, 9 December 2003, pp. 2–3 (hereinafter, Milosevic decision for admission of written statement of deceased witness); Prosecutor v. Naletilic et al., Decision on the Prosecutor’s Request for Public Version of Trial Chamber’s “Decision on the Motion to Admit Statement of Deceased Witnesses [. . .]” of 22 January 2002, IT-9834-T, 27 February 2002, p. 3 (hereinafter, Naletilic motion to admit deceased statement). 138  Prosecutor v. Kordic et al., Decision on Appeal Regarding Statement of a Deceased Witness IT-95-14/2-AR 73.5 21 July 2000 (hereinafter, Kordic Decision on Appeal Regarding Deceased Witness); see Megan Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) California Western International Law Journal 47, 69–70.

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into Croatian in order for the witness to sign the English version.139 Hence, Appeals Chambers found the statement “so lacking in reliability that it should have been excluded as without probative value under Rule 89(C).”140 Also, in Seselj the Judges dismissed the entire testimony of a deceased witness when some of it directly alleged the responsibility of the accused.141 Further, in Karadzic the Judges denied admission of the portion of the transcript of the witness’s testimony related to an intercept, which was, in the Chamber’s view, “highly incriminatory and thus highly prejudicial to the accused.” They noted that the witness had not been cross-examined on his evidence surrounding the intercept or the contents of the intercept itself. According to them admitting this transcript, without any chance for cross-examination, would impact the accused’s fair trial rights. As such, the probative value of admitting this portion of the witness’s evidence was substantially outweighed by the need to ensure a fair trial. The Chamber noted that it differed from the Seselj approach as Rule 92quater, specifically accounts for situations where cross-examination of evidence going to acts and conduct is impossible and then provides a number of other factors that need to be balanced before such evidence can be admitted.142 Furthermore, Judge Kwon opined in Naletilic that with regards to the place of cross-examination in prior proceedings as a factor in making an assessment of admissibility under Rule 92quater, the presence, absence, or poor quality of cross-examination in the prior proceedings should be analysed in the overall assessment of that evidence as a whole. It cannot be considered as a discrete test applicable to individual passages, questions or parts of the testimony or statement.143 In light of all the above methods of obtaining witness evidence relied by the Tribunal, live testimony in the courtroom is the most appropriate method 139  Ibid. para. 27. 140  Ibid. para. 28; Prosecutor v. Kordic et al., Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, IT-95-14/2-AR 73.6, 18 September 2000, paras. 26 & 49 (hereinafter, Kordic Decision on Appeal Regarding Admission of Seven Affidavits); Milosevic decision for admission of written statement of deceased witness pp. 2–3. 141  Prosecutor v. Seselj, Decision on the Prosecution’s Consolidated Motion pursuant to Rules 89(F), 92 bis, 92ter and 92quater of the Rules of Procedure and Evidence” Filed Confidentially on 7 January 2008, IT-03-67-T, 21 February 2008. 142  Prosecutor v. Karadzic, Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babić) pursuant to Rule 92quater, IT-95-5/18-T, 13 April 2010. 143  Prosecutor v. Naletilic et al., Decision on Prosecution Motion for Admission of Transcripts and Exhibits Tendered During Testimony of Certain Blaskic and Kordic Witnesses, IT-9834-PT, 27 November 2000.

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of obtaining evidence. As the Judges have the opportunity to observe the witness demeanour and where necessary ask questions to clarify any doubts. As observed by Wald, the excessive use of written statements in lieu of live testimony may come at the expense of truth. Despite all the fallibilities of live testimony, she says, it still provides decision-makers with the best weapon at their disposal for truth-seeking, far superior to a written statement, when the core of guilt is in doubt.”144 The Judges have also ruled that it is important to re-emphasise the general rule requiring the physical presence of the witness. This is intended to ensure confrontation between the witness and the accused and to enable the Judges to observe the demeanour of the witness when giving evidence. Therefore, evidence given by a witness who appears in person to testify carries more weight than the other possibilities.145 2.2.1.2 Witness Credibility/Reliability The Judges have exercised authority over witness testimony by assessing the truthfulness and trying to accord the proper weight to witness evidence.146 Credibility and reliability are important issues to be decided by the Judges as they may rely on witness testimonies as a foundation for conviction/acquittal of the accused. Rule 98bis provides that at the close of the Prosecutor’s case, the Judges shall by oral decision and after hearing the oral submissions of the parties enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The Judges held in Milosevic a Rule 98bis motion should be allowed where there is some evidence but it is such that taken at its highest a Trial Chamber could not convict on it. This will be the case even if the weakness in the evidence derives from the weight to be attached to it for instance the credibility of a witness. This is in accordance with the exception to the general principle in common law jurisdictions that, issues of credibility

144  Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 230. 145  Delalic, Decision to give Video Link Testimony para. 15; Tadic, Decision to Summon and Protect Defence Witnesses para. 21; Kordic Decision on Appeal Regarding Admission of Seven Affidavits para. 26; see Goran Sluiter International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 238 & 275. 146  Prosecutor v. Prlić et al., Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, IT-04-74-AR73.6, 23 November 2007, para. 57 (hereinafter, Prlic Questioning into Evidence); Prosecutor v. Popović et al., Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, IT-05-88-AR73.2, 30 January 2008, para. 31 (hereinafter, Popovic Interlocutory Appeal).

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and reliability must be left to the jury as the tribunal of fact.147 Nonetheless, a Rule 98bis motion will not be allowed where there is some evidence but it is such that its strength or weakness depends on the view taken of a witness’s credibility and reliability and on one possible view of the facts, a Trial Chamber could convict on it. This accords with the general principle in common law jurisdictions that a Judge must not allow a submission of no case to answer because he considers the prosecution’s evidence to be unreliable, since by doing that he would usurp the function of the jury as the tribunal of fact.148 In practice, most information submitted at trial is allowed into evidence. In Aleksovski it was held the weight the Judges give to the evidence in reaching a verdict turns on its credibility and relevance.149 Wald writes that most witnesses before the ICTY tell the truth as to the core of their experience.150 They are not, however, always so reliable on the details of that experience. She observes that the Judge’s ability to assess witnesses’ credibility is diminished because the counsel and witnesses speak in several languages simultaneously and the trials go on for months or years.151 Credibility determination is particularly angst-inducing, since a Judge must often compare his/her impressions of a recent witness with his/her memories of one who testified several months earlier. Wald observes that the much-vaunted power of a trial Judge to assess credibility on the basis of demeanour as well as testimony content is surely put to the test at ICTY proceedings.152 In Milosevic the Judges ruled that they serve as fact-finders at trial, weighing the probative value of evidence without being shielded from irrelevancies or given guidance as to the weight of the evidence they have heard.153 The Judges are entitled to discern on their own, the credibility of a witness story as fact-finders. They can accept part and reject part of the same witness’s story. However, Wald observes it is a huge responsibility and 147  Prosecutor v. Milosevic, Decision on Motion for Judgement of Acquittal, IT-02-54-T, 16 June 2004, para. 13(2). 148  Ibid. para. 13(3); see Dermont Groome ‘Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility’ (2008) Fordham International Law Journal 911. 149  Aleksovski Decision on Admissibility of Evidence, para. 15. 150  Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 235–237. 151  Ibid. 152  Ibid. p. 238. 153  Prosecutor v. Milosevic, Decision on Prosecution Motion for Voir Dire Proceeding, IT-0254-T, 9 June 2005, p. 5 (hereinafter, Milosevic voir dire proceedings); Elizabeth M. DiPardo, ‘Caught in a Web of lies: use of Prior Inconsistent Statements to Impeach Witnesses before the ICTY’ (2008) Boston College International and Comparative Law Review 277, 281.

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more difficult for them to ensure that the evidence always rises to the “beyond a reasonable doubt” standard for guilt that the Tribunal accepts as its canon.154 There is no mention of reliability in the Rules, but it is an implicit requirement that the Judges give due consideration to indicia of reliability when assessing the relevance and probative value of evidence at the stage of admissibility.155 The Judges held in Kordic that inherent in the determination of whether evidence is probative is the reliability of the evidence.156 According to William Schabas, reliability is the golden thread, which runs through all components of admissibility.157 A Witness’s reliability and credibility can be tested by the parties and must be assessed by them.158 In Milutinovic, it was held that credibility is essentially a factor of reliability, although the two are often referred to as separate concepts. Ultimately, the question is whether the evidence is reliable, and inaccuracy, amongst other reasons, may render it unreliable.159 The Judges further explained that it did not automatically discard a witness’s entire evidence if it found the witness not credible on a particular issue ‘but rather assessed the witness’s credibility upon each issue in light of the evidence in the trial as a whole.’ They considered the potential bias or partiality on the part of witnesses and whether witnesses might have had a motive for giving false testimony whenever circumstances suggested any of these possibilities.160 Worth mentioning that, some witnesses in Milutinovic displayed such a lack of candour toward the Chamber that their evidence was essentially rejected. Other witnesses were found to be reliable (or even unreliable) upon others. The Judges held any witness evidence relied in the course of its judgement was because it found the witness to be reliable upon the issue in question. Furthermore, in many instances the Judges found it necessary to provide an explanation of the basis upon which it had decided to accept or reject evidence. Generally speaking, that had been because the members of the Chamber 154  Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 237. 155  Prosecutor v. Delalic, Decision on Motion of Prosecution for Admissibility of Evidence, IT-96-21-T, 19 January 1998, para. 20 (hereinafter, Delalic Admissibility of Evidence). 156  Prosecutor v. Kordic, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2-AR73.5, 21 July 2000, paras. 23–24 & 29 (hereinafter, kordic Appeal Decision on deceased Witness). 157  William A Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press 2006) p. 456. 158  Jokic Contempt Judgement para. 28. 159  Prosecutor v. Milutinovic et al., Judgement volume 1 of 4, IT-05-87-T, 26 February 2009, para. 61 (hereinafter, Milutinovic Judgement). 160  Ibid.

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formed the view that the witness was reliable upon the point in question, and where evidence was admitted by agreement of the parties the Chamber generally accepted it.161 Moreover, throughout its consideration of the evidence in the case, the Judges regarded the lapse of time scale of the events and its possible impact upon the reliability of the evidence. It had regard to demeanour, conduct and circumstances of each individual witness in assessing the reliability of the evidence of that witness. They had the advantage in the case of almost every witness of being able to observe that witness giving evidence in its presence, to study the demeanour and conduct of the witness in court and to form an impression of whether the witness appeared to be trying to give a reliable account.162 In Krajisnik it was held evidence of witnesses who might have motives or incentives to implicate the accused is not per se unreliable, but the Judges are bound to consider it carefully.163 The assessment whether to rely on the evidence of persons, who might have certain interests while testifying, depends largely on the specific context of the provided information.164 In this case, the Appeals Chamber rejected an argument that the Trial Chamber had failed to sufficiently explain its reliance on witnesses with motives or incentives to implicate the accused or that it had erred in its examination or reliance on such witnesses.165 A Trial Chamber should at least briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused’ which would show its cautious assessment of such evidence.166 The Krajisnik Trial Chamber implicitly explained its acceptance of parts of the impugned evidence in question by referring to other corroborative evidence.167 Even though the judgement did not expressly reflect the Trial Chamber’s evaluation of the evidence of those impugned witnesses, the Trial Chamber’s cautious approach was also apparent from its assessment of the evidence as a whole and from its reliance on numerous pieces of evidence for its findings.168 The correct exercise of the Trial Chamber’s discretion was further evidenced by its reliance on specific parts of the evidence, and rejection of 161  Ibid. 162  Ibid. para. 60. 163  Prosecutor v. Krajisnik, Appeal Judgement, IT-00-39-A, 17 March 2009, para. 146 (hereinafter, Krajisnik Appeal Judgement). 164  Ibid. para. 150. 165  Ibid. paras. 146–152. 166  Ibid. See also para. 349. 167  Ibid. para. 147. 168  Ibid. para. 148.

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other parts.169 The Judges should not have relied on the evidence of witnesses who have motives for implicating the accused. The Judges are meant to protect the rights of all thereby guaranteeing the fair trial rights of the accused. When it is proven that a witness intends to implicate the accused, his/her testimony is already tainted. The entire testimony should have been disqualified. Furthermore, Rule 90(C) is a rule that may reflect witness credibility when witnesses don’t know the testimony of other witnesses this ensures the authenticity of statements and evidence. Accordingly a witness, other than an expert, who has not yet testified, shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. Another factor, which guarantees credibility, is for the parties to cease communication once witness begins testifying. Witnesses are not to communicate with the parties or their counsel at any point after they take the solemn declaration to speak truth. In Tolimir, the Judges held that once a witness has begun testifying before them the parties should have no ex-parte communication with the witness before the completion of the witness’s testimony except upon leave of the Trial Chamber. When such leave to communicate with the witness is granted by the Judges the communication should involve the substance of the witness’s testimony.170 The reasoning behind this rule by the Judges is that permitting either party to communicate with a witness after he/she has commenced his/her testimony may lead both witness and party, albeit unwittingly, to discuss the content of the testimony already given and thereby to influence or affect the witness’s further testimony in ways which are not consonant with the spirit of the Statute and the Rules of the Tribunal.171 With regards to documents, it is desirable that a witness speak to the origins and/or content of document to be tendered into evidence, to allow the Chamber to properly assess the relevance, authenticity and reliability of that document, and thus its probative value, and, ultimately, be able to make use of that document in a meaningful way in its overall consideration of the evidence in the case. Karadzic Judges held that this general principle does not rule out the possibility of admitting documents that challenge a witness’s credibility 169  Ibid. para. 150. 170  Prosecutor v. Tolimir, Revised Order Concerning Guidelines on the Presentation of Evidence and Conduct of parties during Trial, IT-05-88/2-T, 4 February 2011, para. 14 (hereinafter, Tolimir Guidelines on Presentation of Evidence). 171  Prosecutor v. Kupreskic et al., Decision on Communication between the Parties and Their Witnesses, IT-95-16-T, 21 September 1998 (hereinafter, Kupreskic Communication Decision).

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including in situations where the witness states that he/she has no knowledge of the document or rejects its contents. In such a context, the fact that the document goes to the witness’s credibility may constitute sufficient nexus between the witness and the document for it to be admissible. However, the party tendering the document must also be able to satisfy the Chamber as the document’s authenticity and reliability before it could be admitted.172 Finally, in Stanisic it was held that the Judges may consider issues of reliability going beyond the circumstances in which a witness statement was made and recorded such as the occurrence extent and quality of prior crossexamination; whether the statement, particularly an unsworn statement which was not subject to cross-examination, is corroborated by other evidence; and whether the statement contains any ‘manifest or obvious inconsistencies. Factors such as the witness’s overall credibility and the extent to which his/ her statement contains hearsay evidence may also be taken into account. The Judges may also consider the relevance of the witness’s statement to the case.173 These methods used to assess credibility will be discussed below. 2.2.1.2.1 Examination/Cross-examination In Delalic it was ruled that examination-in-chief is the process whereby a party who has called a witness to give evidence in support of his case elicits from such witness through questions evidence relevant to the issues favourable to his case. In other words, examination-in-chief is always conducted by the party calling a witness to testify.174 Meanwhile the object of cross-examination is twofold, first to elicit information concerning facts in issue, or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and secondly, to cast doubt upon the accuracy of the evidencein-chief given against such party.175 It is also the practice of the Tribunal not to allow leading questions on matters in dispute.176 Rule 90(H)(i) expressly guarantee litigants the right to cross-examine witnesses. The subject matter

172  Prosecutor v. Karadzic, Decision on Motion for Admission into Evidence of MFI D684, IT-95-5/18-T, 8 November 2010, para. 8. 173  Prosecutor v. Stanisic et al., Decision on Prosecution Motion for Admission of Evidence of Stevan Todorovic Pursuant to Rule 92quarter, IT-03-69-T, 29 October 2010, para. 23. 174  Prosecutor v. Delalic et al., Decision on the Motion on Presentation of Evidence by the Accused, Esad Land‘o, IT-96-21-T, 1 May 1997, para. 22. 175  Ibid. 176  Prosecutor v. Kordic et al., Decision on Prosecutor’s Motion on Trial Procedure, IT-9514/2-PT, 19 March 1999.

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on cross-examination is limited to the evidence-in-chief and matters substantially affecting the credibility of witnesses.177 Rule 90(H)(ii) seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness cross-examined the possibility of explaining himself on those aspects of his testimony contradicting by the opposing party’s evidence. This saves the witness from having to reappear needlessly in order to do so and enabling the Judges to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.178 The Appeals Chamber has stressed that in order to fulfil the requirements of Rule 90(H)(ii) it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion. There is no need for cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of trial. In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.179 The Judges have held the right to cross-examination is not absolute and may be limited in accordance with the Rules including Rule 92quarter, which specifically envisages the admission of evidence without the possibility of cross-examination and associated jurisprudence.180 In Aleksovski the Appeal Judges asserted that cross-examination must be of a certain quality or standard before it should be considered indicia of reliability.181 Similarly, Kordic Appeal Judges made reference to Aleksovski to support their conclusion that crossexamination is relevant indicia of reliability.182 They ruled that a witness statement in the Kordic case contained none of the indicia of reliability. It lacked all of the factors present in Aleksovski, for instance it was not given under oath and it was never subject to cross-examination by anyone.183 In Blaskic it was 177  I CTY First Annual Report U.N. Doc. S/1994/1007, A/49/342 29 August 1994, para. 65, available at http://www.un.org/icty/rappannu-e/1994/index.htm (last visited September 2009). 178  Prosecutor v. Brdanin et al., Decision on the Interlocutory Appeal Against a Decision of the Trial Chamber, as of Right, IT-99-36-AR-73.7, 6 June 2002, p. 4; Prosecutor v. Popovic et al., Order setting forth Guidelines for the Procedure under Rule 90(H)(ii), IT-05-88-T, 6 March 2007. 179  Krajisnik Appeal Judgement, para. 368. 180  Prosecutor v. Stanisic et al., Decision on Simatovic Defence Request for Certification to Appeal, IT-03-69-T, 17 February 2011, para. 8. 181  Aleksovski Decision on Admissibility of Evidence, para. 20. 182  Kordic Appeal Decision on deceased Witness, para. 20. 183  Ibid. para. 27.

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held that both the prosecution and the defence must have the right to engage in effective cross-examination to ensure a fair trial.184 In view of establishing the truth, this principle requires that there be no excessive infringement on the rights of the prosecution inter alia the right to conduct an effective crossexamination of the defence witnesses.185 Furthermore, with regards to a party cross-examining its own witness, Judge O-Gon Kwon in Milosevic issued an opinion dissenting from a decision in which the Milosevic Trial Chamber denied the prosecution leave to crossexamine its own witness.186 He examined the origin, in English common law, of the rule that a party should not cross-examine its own witness. He noted several arguments in favour of the rule: a party should not be granted any means to discredit its witness; a party guarantees the trustworthiness of the evidence it adduces; it would be unfair for the witness to be subjected to crossexamination twice; and such cross-examination may lead the jury, the fact finders in a common law system, to confusion because the witness has been discredited by the party calling him.187 Also, the Appeals Chambers has tested the credibility of new evidence presented to them. For instance in Kupreskic, it admitted new evidence, and held a hearing “with the purpose of testing the veracity of three witnesses.”188 Although the Chamber avoided the term “cross-examination” as being oriented to the common law, it did permit testing the credibility of witnesses through examination by all sides in court.189 In Mrksic the Appeals Chamber clarified the circumstances in which a subsequent statement of a witness made after the trial would be considered ‘new evidence’ on appeal under Rule 115. The Chamber held that unless the witness specified that he/she had learnt of information after testifying in the appellant’s trial it may be presumed that all the information adduced in the witness’s testimony in a later case was also available at the time of the witness’s earlier testimony at trial.190 This presumption is reversed, however, where the subsequent statement allegedly 184  Prosecutor v. Blaskic, Decision on the Defence Motion for Protective Measures for Witnesses D/H and D/I, IT-95-14, 25 September 1998, para. 10 (hereinafter, Blaskic defence motion for protective measures). 185  Ibid. para. 8. 186  Prosecutor v. Milosevic Separate Opinion of Judge O-Gon Kwon on Trial Chamber Confidential Decision Issued 28 January 2004, IT-02-54-T, 29 April 2004. 187  Ibid. para. 4. 188  Kupreskic Appeal Judgement, para. 505. 189  Ibid. 190  Prosecutor v. Mrksic et al., Appeals Decision on Mile Mrksic’s Second Rule 115 Motion, IT-95-13/1-A, 13 February 2009, para. 15.

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contradicts what the witness said in the appellant’s trial. Contradictory statements are prima facie not available at the time of the appellant’s trial for use in cross-examination and to the extent the alleged contradictions undermine the witness’s credibility they will be considered new evidence on appeal under Rule 115.191 Under Rule 115(B), where the Appeals Chamber finds that additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. It is important that appellate proceedings to admit new evidence in international criminal tribunals be oral, because of the need to test credibility.192 2.2.1.2.2 Prior-Statements In Perisic the Judges held, in accordance with the principle of orality, which is expressed in Rule 89(F) prior-statements of a witness should not be tendered into evidence where relevant portions thereof have been read out and entered on the record or where the witness has otherwise commented on the statement in his/her live testimony.193 Witness statements are only admitted into evidence if the Chamber is satisfied that they may have additional probative value pursuant to Rule 89(C) in relation to a witness’ live-testimony.194 When the prosecution does not seek to admit the prior-statement in lieu of oral testimony, but rather seeks only to elicit the oral testimony of the witness after the memory of the witness has been refreshed, as ruled in Hadihasanovic, the statement shown to the witness need not satisfy the requirements of Rule 92bis. A prior-statement may be used to refresh the memory of a witness under crossexamination and during examination-in-chief. If refreshment is permitted, the Judges may consider the means and circumstances by which the memory was refreshed, when assessing the reliability and credibility of the witness’s testimony.195 As already mentioned, the purpose of Rule 92bis is to determine whether a particular statement meets the requirements for admission into evidence (with or without cross-examination) as an alternative or complement to viva 191  Ibid. 192  See Christoph J. M. Safferling, Towards an International Criminal Procedure (Oxford University Press 2001) pp. 336–337. 193  Prosecutor v. Perisic, Order for Guidelines on the Admission and Presentation of Evidence and Conduct of Counsel in Court, IT-04-81-T, 29 October 2008, paras. 3–7. 194  Prosecutor v. Naletilic et al., Decision on the Admission of Witness Statements into Evidence, IT-98-34-T, 14 November 2001, p. 3 (hereinafter, Naletilic Admission Decision). 195  Prosecutor v. Hadihasanovic et al., Decision on Interlocutory Appeal Relating to the Refreshment of the Memory of a Witness, IT-01-47-AR73.2, 2 April 2004, p. 3.

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voce evidence and not to limit the scope of cross-examination, or to regulate the types of statements or documents which may be referred to in crossexamination. For instance, the fact that a statement was made pursuant to Rule 92bis does not prevent the use of the unadmitted portions of the statement for the purpose of refreshing the memory of a witness or challenging his credibility under cross-examination.196 Despite the amendments made to the Rules with respect to the form of admissible evidence, oral evidence remains the primary and normal standard. It would not appear to be in the interests of justice for a practice to develop by which the prosecution could readily seek to brush aside the oral evidence given in court of a prosecution witness in favour of a disavowed earlier account of the witness.197 In Limaj, it was held there could be instances when witnesses who were called and gave oral evidence which canvassed the relevant events fully, but who, for reasons which appeared to the Chamber to involve an unpreparedness to tell the truth, disavowed in part what they had previously stated during their respective out-of-court videotaped formal interviews. These very specific circumstances are not within the scope of Rule 89(F). A critical issue here is whether Rule 89(C) would allow the receipt, as substantive evidence, of prior witness statement.198 Where the prosecution applies for admission of the prior interview as substantive evidence under Rule 89(C), it shall present sufficient evidence of the reliability of the prior interview.199 An earlier inconsistent account of a witness may well assist the Chamber to evaluate not only the credit of a witness and the truthfulness of his/her oral evidence, but also whether he/she was being truthful in the earlier account and whether what was then said remains reliable despite the contrary oral evidence. A Chamber may refuse to exercise the discretion, under Rule 89(C), to admit the prior interviews if circumstances of the case indicate that the prosecution is seeking to ignore its responsibilities by calling a witness, who was in truth clearly opposed to its case, as a mere device to seek to tender the earlier inconsistent interview of that witness.200 Furthermore, the Appeals Chamber has held that the Trial Chamber’s admission into evidence of a witness’ prior statement as substantive evidence where the witness had, in his 196  Prosecutor v. Simic et al., Decision on Prosecution Interlocutory Appeals on the Use of Statements not Admitted into Evidence Pursuant to Rule 92 bis as a Basis to Challenge Credibility and to Refresh Memory, IT-95-9-AR73.6 & IT-95-9-AR73.7, 23 May 2003, para. 15. 197  Limaj Decision to Admit Prior Statements, para. 29. 198  Ibid. paras. 16 & 20. 199  Ibid. para. 22. 200  Ibid. paras. 31–32.

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in-court testimony, recanted the contents of his prior-statement did not usurp the Chamber’s power to later assess the reliability of this evidence when determining the guilt of the accused.201 2.2.1.2.3 Prior-Inconsistent Statements Prior-inconsistent statements are generally admissible in international criminal trials, as a means to impeach the credibility of a witness.202 Again, Rule 90(H)(i) grants litigants the right to cross-examine on matters affecting the credibility of witnesses. The right to cross-examine a witness regarding his/ her credibility must include the right to present prior inconsistent-statements to a witness if, during live testimony, the witness changes his/her story. The prosecutor’s ability to introduce this form of impeachment evidence, however, is not explicitly guaranteed in the Rules and, therefore, is left entirely to the discretion of each Trial Chamber. For instance, in Simic impeachment by prior inconsistent-statements was refused by Judges to be allowed.203 While in Mrksic impeachment by prior inconsistent-statements were allowed by the Judges.204 Furthermore, questioning during cross-examination also affords a witness an opportunity to explain the inconsistencies, proving that the live testimony is truthful and reliable.205 In Halilović, the Judges held that the party calling the witness might challenge the witness credibility on portions of his/ her testimony, without necessarily seeking leave from the Judges by confronting the witness with specific passages of his/her prior statement, so that explanations can be given for the alleged discrepancies and these explanations can be tested by cross-examination.206 In Naletilic, it was held that parties are allowed to refer to witness statements to attempt to impeach a witness by challenging the consistency and 201  Prosecutor v. Limaj et al., Appeals Judgement, IT-03-66-A, 27 September 2007, para. 228 (hereinafter, Limaj Appeals Judgement). 202  Prosecutor v. Delalic et al., Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence, IT-96-21-T, 2 September 1997, para. 137 (hereinafter, Delalic Exclusion of Evidence). 203  Prosecutor v. Simic, Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews, IT-95-9-T, 11 March 2003, para. 8; see Elizabeth M. DiPardo, ‘Caught in a Web of lies: use of Prior Inconsistent Statements to Impeach Witnesses before the ICTY’ (2008) Boston College International and Comparative Law Review 277, 284. 204  Prosecutor v. Mrksic, Decision Concerning the Use of Statements Given by the Accused, IT-95-13/1-T, 9 October 2006, para. 33. 205  Ibid. para. 32. 206  Prosecutor v. Halilović, Decision on Admission into Evidence of Prior Statement of a Witness, IT-01-48-T, 5 July 2005, p. 3 (hereinafter, Halilovic Prior-Statement decision).

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reliability of the witness’ testimony. The witness live testimony in reaction to being challenged by confrontation with these interview statements will represent the “evidence” and the witness statements only serve the purpose to aid in the challenge of specific parts of live-testimony and do not by themselves represent such “evidence”. The challenged part of the witness’ testimony is clearly reflected in the trial transcript and will be taken into account by the Chamber when making their findings.207 Rutledge observes the defence counsel have generally found it difficult or impossible to impeach victim-witnesses even if they have no personal knowledge of the case and are merely giving hearsay testimony to establish the accused’s culpability for what they witnessed and experienced. The prosecution, on the other hand, may attempt to overcome individual credibility or reliability issues by calling a vast number of witnesses to corroborate an allegation. She observes that inconsistent-statements made to aid workers, journalists, or other individuals can also be used to impeach a witness. In the case of victim-witnesses, the problem of coercion, posttraumatic stress disorder, or any number of other factors play into the reliability of any previous statement just as much as it could influence the current testimony.208 The Appeals Chamber in Stanisic has affirmed that a Trial Chamber may admit a witness’s previous inconsistent-statement into evidence for the purposes of assessing a witness’s credibility. A Trial Chamber may also admit a witness’s previous inconsistent-statement for the truth of its contents when it fulfils the criteria under the Rules of being relevant and sufficiently reliable to be accepted as probative. In determining whether a statement is reliable for the purpose of proving the truth of its contents, a Chamber may consider the content of the statement, the circumstances under which it arose and the opportunity to cross-examine the person who made the statements. Further, when admitting into evidence a witness’s previous inconsistent-statement, a Chamber must specify whether it admits the statements to impeach the witness’s credibility or for the truth of its contents.209 In addition, in Prlic it was held the Judges may be more lenient with respect to admission of fresh evidence for the sole purpose of impeaching a witness’s credibility or refreshing his/her memory, but still must decide on admission on a case-by-case basis 207  Naletilic Admission Decision, p. 3. 208  See Kristina D. Rutledge, ‘Spoiling Everything’ But for Whom? Rules of Evidence and International Criminal Proceedings’ (2003–2004) Regent University Law Review 151. 209  Prosecutor v. Stanisic et al., Decision on Admission into Evidence of Prior Testimony, Statement, and Related Documents concerning Witness JF-052, IT-03-69-T, 28 January 2011, para. 6 (hereinafter, Stanisic Admission into Evidence of Prior Testimony).

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in conformity with Rule 89.210 The Judges have also held that unsworn statements taken by the prosecution of people who do not appear on the witness list should not be used to support or impeach other witnesses’ testimony.211 Also, Rule 68 obliges the prosecution to monitor the testimony of witnesses and to disclose material relevant to the impeachment of a witness including a witness called by the court during or after testimony. If the amount of material is extensive, the parties are entitled to request an adjournment in order to properly prepare themselves.212 The Rules do not provide clear guidance on the question of impeaching a party’s own witness.213 In Popovic the defence successfully appealed the Trial Chamber’s ruling that a party could impeach its own witness without seeking permission from the Trial Chamber, as long as the party made it clear when such a challenge began and ended. The Appeals Chamber held that Trial Chambers generally have discretion to determine when to permit a party to impeach its own witness. However, that discretion must remain with the Trial Chamber, which is also responsible for determining the scope of the questioning. Therefore, the Trial Chamber in Popovic had erred by putting the determination to impeach in the hands of the party calling the witness. Accordingly, the Judges held that recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to crossexamine, to the calling party rather than to the Trial Chamber.214 The Appeals Chamber considered that notwithstanding the exact form the impeachment procedure takes the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the prosecution’s assertion in the case that the Trial Chamber had not abandoned or undermined 210  Prosecutor v. Prlic et al., Decision on Interlocutory Appeal Against the Trial Chamber’s Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, IT-04-74-AR73.14, 26 February 2009, para. 28. 211  Prosecutor v. Halilovic, Decision on Prosecution’s Motion to Vary its Rule 65 ter Witness List, IT-01-48-T, T. Ch. I, 7 February 2005, p. 6. 212  Prosecutor v. Krstic, Appeals Judgement, IT-98-33-A, 19 April 2004, para. 206. 213  Limaj Decision to Admit Prior Statements, para. 8. 214  Prosecutor v. Popovic et al., Decision on Appeals Against Decision on Impeachment of a Party’s own witness, IT-05-88-AR73.3, 1 February 2008, para. 24 (hereinafter, Popovic Appeals Decision on Impeachment).

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its authority to control the nature and extent of a witness’ examination under Rule 90(F), it was difficult to interpret the impugned decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber left no room for objections to impeachment.215 According to the Appeals Chamber, the Trial Chamber’s practice demonstrated a general if not altogether consistent approach that puts the decision to allow a party to put a prior-statement to its own witness and crossexamine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber held the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further decided that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent-statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it.216 Finally, the Appeals Chamber confirmed that the contents of a witness’s prior inconsistent-statement that is used to impeach the witness could be admitted as hearsay evidence for the truth of its contents. Its use is not limited to credibility determinations. Such evidence is subject to the general admissibility conditions, namely, that it be relevant and sufficiently reliable to be accepted as probative.217 It bears noting that this approach is consistent with the position at common law which has evolved alongside developments in the law on hearsay in recent years to allow for the admission of a prior inconsistentstatement adduced in this manner for the truth of its contents. While the position at common law is in no way determinative of the issue, it would seem unsound to adopt a stricter approach on this point.218 Elizabeth Dipardo writes the ICTY has a stronger incentive to adopt a rule permitting impeachment of witnesses by prior inconsistent-statements because professional Judges possess the requisite knowledge to afford only the proper weight to hearsay or illegally obtained evidence. Admission of impeachment evidence, therefore, 215  Ibid. para. 26. 216  Ibid. para. 28. 217  Limaj Decision to Admit Prior Statements, paras. 18 & 21. 218  Popovic Appeals Decision on Impeachment para. 31.

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is warranted at the ICTY because it would give the Judge a better understanding of the witness’s credibility without the risk of the evidence being used substantively.219 2.2.1.2.4 Hearsay-evidence There is no blanket prohibition on the admissibility of hearsay-evidence at the ICTY. In Aleksovski, hearsay is defined as “the statement of a person made otherwise than in the proceedings in which it is being tendered, but nevertheless being tendered in those proceedings in order to establish the truth of what the person says.” Its admissibility may not be subject to any prohibition in principle since the proceedings are conducted before professional Judges who possess the necessary ability to begin by hearing hearsay-evidence and then to evaluate it so that they may make a ruling as to its relevance and probative value. Thus, hearsay statements are admissible against both parties if the statements are relevant and have probative value.220 The “golden thread” of reliability, therefore, weaves into the analysis because determinations regarding probative value require the Judges to pay particular attention to the reliability of a statement including whether it was voluntary, truthful, and trustworthy.221 Rule 89(C) gives to a Chamber a broad discretion to admit relevant hearsayevidence. Such evidence is admitted to prove the truth of its contents. It should be admitted if it has been shown to be reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate. For this purpose the Chamber may consider both the content of the hearsay statement and the circumstances under which the evidence arose. The probative value of a hearsay statement will depend upon the context and character of the evidence in question.222 The absence of the opportunity to cross-examine the person, who made the statements, and whether the hearsay is “first-hand” or more removed, are relevant to the probative value of the evidence.223 Although it depends upon the infinitely variable circumstances of the particular case, the weight or probative value to be afforded to hearsay-evidence will usually be 219  Elizabeth M. DiPardo, ‘Caught in a Web of lies: use of Prior Inconsistent Statements to Impeach Witnesses before the ICTY’ (2008) Boston College International and Comparative Law Review 277, 297–298. 220  Aleksovski Decision on Admissibility of Evidence paras. 14–15. 221  Prosecutor v. Tadic, Decision on the Defense Motion on Hearsay, IT-94-1-T, 7 August 1996, paras. 15–19. 222  Milosevic Appeals Decision on Admissibility of Prosecution Investigator’s Evidence para. 18. 223  Ibid.; Prosecutor v. Strugar, Decision II on the Admissibility of Certain Documents, IT-0142-T, 9 September 2004, para. 8.

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less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined.224 The broad discretion given by Rule 89(C) is nevertheless limited by the requirement in Rule 89(B) that the rules of evidence applied by a Chamber must be those which best favour a fair determination of the matter before the Chamber and which are consonant with the spirit of the Tribunal’s Statute and the general principles of law. The exercise of discretion under Rule 89(C) ought therefore to be in harmony with the Statute and the other Rules to the greatest extent possible. Hence, Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Chamber can be satisfied that the evidence is reliable; if the evidence meets none of the requirements of the other Rules which permit a departure from the particular evidence being given orally, there must be other compensating evidence of reliability.225 Hearsay-evidence is therefore not excluded at the admissibility stage, and Judges are therefore able to hear evidence and the context in which it was obtained, and then accord it its proper weight. It has been suggested that the Court in determining admissibility should first assess the reliability of the evidence and then rule on admissibility with the result that unreliable evidence would be excluded. However, this approach has been rejected. Again, to be admissible, the evidence must be probative and relevant. It is an implicit requirement that the Judges give due consideration to indicia of reliability when assessing the relevance and probative value of evidence at the stage of admissibility.226 Further, a summary made by one person of material provided by another person is necessarily hearsay evidence in character. The admissibility of hearsay-evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material, which would not be admissible by itself. In Milosevic it 224  Ibid. 225  Ibid. 226   Delalic Admissibility of Evidence para. 20; see also Kellye L. Fabian, ‘Proof and Consequences: An Analysis of the Tadic & Akayesu Trials’ (2000) DePaul Law Review 981, 1033; Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal tribunal for the Former Yugoslavia’ (1999) American Journal of International Law 57, 80; Fatema E. Fallahnejad Burkey, ‘The Prosecutor v. Aleksovski, 30 May 2001, Judgment on Appeal by Anto Nobilo against Finding of Contempt: A critical Analysis of the ICTY Appeals Chamber’s Abandonment of Witness Protection Measures’ (2004) Washington University Law Quarterly 297, 308–309; Kristina D. Rutledge, “Spoiling Everything’—But for Whom? Rules of Evidence and International Criminal Proceedings” (2003–2004) Regent University Law Review 151, 170; Patricia M. Wald ‘To Establish Incredible Events by Credible Evidence’ The use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’ (2001) Harvard International Law Journal 535, 551.

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was reiterated that Rule 92bis requires the witness statements to be admitted into evidence and the witness to be available for cross-examination if the Judges so orders the material summarised in the case was not admissible as hearsay-evidence.227 Where the material summarised consists of statements made by others other than written statements by prospective factual witnesses for the purposes of legal proceedings, so that the material summarised would be admissible pursuant to Rule 89(C), the summary still consists of hearsayevidence of those statements made by others, and the reliability of the statements made by those other persons which are themselves hearsay is relevant to the admissibility of the summary.228 The Judges must therefore consider whether the summary is “first-hand” hearsay that is, whether the persons who made the statements summarised personally saw or heard the events recorded in their statements, and whether the absence of the opportunity to crossexamine those persons affects the reliability of their statements.229 The opportunity to cross-examine the person who summarised statements does not overcome the absence of the opportunity to cross-examine the persons who made them. In some cases, the statements may contain their own indicia of reliability, which does overcome the absence of that opportunity.230 The Judges must be satisfied as to the reliability of the method by which the statements have been summarised. This is an issue, which can be tested by the crossexamination of the person who made the summary. Where the summary of material is prepared by an employee of the party who seeks to rely upon the summary (particularly where the accused is unrepresented by counsel): summary of that material should not be regarded as reliable unless the material itself is in evidence so that the Judges may make its own assessment of the material; were the Judges rely upon the summary without having the opportunity to make its own assessment of its reliability, the public perception of a verdict based upon that summary would be that the verdict was unsafe; and if the statements were admitted, the summary would become unnecessary.231 Again, in Milosevic the prosecution sought to tender, pursuant to Rule 89(C), a report of an investigator summarizing witness statements and drawing conclusions based on his analysis of those statements. The Appeals Chamber drew a distinction between the content of the proposed evidence and the method

227  Milosevic Appeals Decision on Admissibility of Investigator’s Evidence para. 21. 228  Ibid. para. 22. 229  Ibid.; Aleksovski Decision on Admissibility of Evidence para. 15. 230  Ibid. 231  Ibid. para. 23.

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by which it was proposed to tender such evidence.232 With respect to the content, the Appeals Chamber concluded that the investigator’s ‘assessments’ of the witness statements were actually conclusions and that the task that the investigator had undertaken was essentially ‘the very task, which the Trial Chamber had to perform for itself’.233 The Appeals Chamber stated that the ‘basic issue is whether the material being summarized would itself be admissible’. Since the material summarized was not tendered pursuant to Rule 92bis, the investigator’s summary and conclusions were inadmissible as hearsayevidence.234 Hence, a witness such as a local policeman, who took statements in course of a domestic investigation, may be examined on those statements. The statements, as they were not prepared for the purposes of legal proceedings before the Tribunal, may be admissible as hearsay-evidence pursuant to Rule 89(C) if the reliability of the statements is sufficiently established.235 2.2.1.2.5 Corroboration In Limaj the Appeals Chamber confirmed that corroboration of testimonies, even by many witnesses, does not establish automatically the credibility, reliability or weight of those testimonies. It held that corroboration is neither a condition nor a guarantee of reliability of a single piece of evidence. It is an element that a reasonable trier of fact may consider in assessing the evidence. Hence, the question of whether to consider corroboration or not, forms part of the Judge’s discretion.236 Rule 96 for instance unequivocally states that corroboration of a rape-victim testimony is not necessary. This Rule in practice may nonetheless be negated by judicial concerns about sufficiency of evidence, which may result in a de facto corroboration requirement.237 The Rule seemed to have been put aside in Furundzija, it appears that rape-victim testimony was corroborated in the case. In its opening statement, the prosecution averred that whilst Rule 96 does not require corroboration of the testimony of a rape-victim, the prosecution does propose to call Witness D, who will be able to corroborate at least a part of the appalling abuses suffered by 232  Ibid. para. 14. 233  Ibid. para. 17. 234  Ibid. para. 21. 235  Prosecutor v. Milosevic, Decision on Testimony of Defence Witness Dragan Jasovic, IT-0254-T, 15 April 2005, p. 5. 236  Limaj Appeals Judgement para. 203. 237  See Christin Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia North Carolina’ (2000) Journal of International Law and Commercial Regulation 183, 213.

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Witness A.238 However, after hearing all the testimony, the Tribunal publicly noted that, although corroboration was not required under the Rules, it had made a factual finding nonetheless that evidence of Witness D does confirm the evidence of Witness A.239 Christin Coan suggests that the circumstances of these cases may illustrate the existence of a de facto corroboration requirement. Further, even if the Judges strictly observe Rule 96 in adjudicating the credibility of rape victim testimony, the Prosecutor may be hesitant to charge rape in cases where no corroborative testimony exists to bolster the victim’s testimony.240 2.2.1.2.6 Admissibility of Expert-witness Testimony As earlier indicated an expert witness testimony assist the Judges in its understanding or determination of issues in dispute based on his/her specialised knowledge or experience. Hence opinions and conclusions presented before the Judges from the expert witness should be credible and reliable. Rule 94bis is distinct from Rule 92bis, as it provides for a strict procedure for the tendering of expert-witness statements. Rule 94bis provides for a clear procedure regarding the admission of expert reports which includes the right of the opposing party to challenge the qualifications of a proposed expert-witness, Rule 92bis, therefore, is considered as lex generalis for the admission of witness statements and Rule 94bis as lex specialis for expert-witness statements.241 Rule 94bis (B)(iii) invites the opposing party to indicate if it challenges the qualifications of the witness as an expert.242 Thus, it requires the opposing party to react to the expert statement, once it has been disclosed, and, depending upon whether the opposing party wishes to cross-examine the expert, to provide for the admission of the expert statement without calling the expertwitness to testify.243 In cases where the opposing party does not accept the statement of the expert-witness on grounds not to be considered unreasonable, the statement 238  Prosecutor v. Furundzija, Transcript, IT-95–17, 8 June 1998, para. 67. 239  Ibid. para. 116; Prosecutor v. Delalic, Judgment, IT-96-21-T, 16 November 1998, para. 957. 240  Christin Coan ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia North Carolina’ (2000) Journal of International Law and Commercial Regulation 183, 215. 241  Blagojevic Decision for Admission of Expert Statements para. 28. 242  Ibid. para. 21; Tolimir Rule 92bis and 94bis Decision para. 38. 243  Ibid. para. 23; Galic Rule 92bis(C) Interlocutory Appeal para. 39; Prosecutor v. Lukic et al., Decision on Second Prosecution Motion for the Admission of Evidence pursuant to Rule 92bis (Two Expert Witnesses), IT-98-32/T, 23 July 2008, para. 14 (hereinafter, Lukic Rule 92bis Decision).

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can only be admitted into evidence after the expert had been called and has testified in person.244 Further, Rule 94bis(C) provides that if the opposing party accepts the report of an expert-witness it may be admitted into evidence by the Judges without calling the witness to testify in person.245 The content of the statement or report must fall within the expert-witness area of expertise. This requirement ensures that the statements or reports of an expertwitness will only be treated as expert evidence in so far as they are based on the expert’s specialised knowledge skills or training. Statements that fall outside the area of expertise will be treated as personal opinions of the witness and will be weighed accordingly.246 The Tribunal’s jurisprudence sets out the following requirements for admissibility of expert reports: the witness who drafted the report is considered an expert by the Chamber, the content of the expert report falls within the accepted expertise of the expert witness, the expert statements or reports meet the minimum standard of reliability and the expert statement or report are relevant and of probative value.247 Hence, the evidence sought to be admitted, under the Rule must also fulfil the general requirements of admissibility. The proposed evidence must therefore be relevant and have probative value and the probative value must not be substantially outweighed by the need to ensure a fair trial.248 The Rule does not add to the provisions of Rule 89(C) a condition of admissibility which is not expressly prescribed by that provision, and therefore does not set a higher threshold for the admission of the evidence of an expert witness than the standard admissibility requirements enshrined in Rule 89(C).249

244  Ibid. paras. 25–27. 245  Prosecutor v. Tolimir, Decision on Prosecutions Motion for Leave to amend the Rule 65ter Witness list and for Disclosure of an Expert Witness Report pursuant to Rule 94bis, IT-0588/2-T, 4 October 2010, para. 14. 246  Prosecutor v. Perisic, Decision on Expert Report by Richard Philipps, IT-04-81-T, 10 March 2009, para. 8. 247  Prosecutor v. Gotovina et al., Decision on Expert Report and Addendum of Harry Konings, IT-06-90-T, 18 December 2008, para. 9; Prosecutor v. Perisic, Decision on Admissibility of Expert Report of Patrick Treanor, IT-04-81-T, 27 November 2008, para. 8 (hereinafter, Perisic Patrick Treanor Decision); Lukic Rule 92bis Decision para. 20. 248  Prosecutor v. Perisic, Decision on Expert Reports of Ewa Tabeau, IT-04-81-T, 23 April 2009, para. 11. 249   Prosecutor v. Strugar, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, IT-01-42-T, 1 April 2004, p. 5; Perisic Patrick Treanor Decision para. 7; Lukic Rule 92bis Decision para. 19.

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In Stanisic, the Judges ruled that the expert statement or report must meet the minimum standards of reliability. There must be sufficient information as to the sources used in support of the statements. The sources must be clearly indicated and accessible in order to allow the other party or the Judges to test or challenge the basis on which the expert witness reached his/her conclusions. In the absence of clear references or accessible sources, the Judges will not treat such a statement or report as an expert opinion, but as the personal opinion of the witness and weigh the evidence accordingly.250 Finally, in Galic the Judges held that expert-witness statements and transcripts can be admitted under Rule 92bis provided the other requirements of Rule 92bis are satisfied.251 Nonetheless, the proper procedure to be followed in tendering and admission of written statements of experts is through Rule 94bis.252 To conclude, Wald writes that the special aspects of witness testimony in ICTY proceedings led her to wonder whether an appellate court reviewing a Trial Chamber’s findings of witness credibility, should be required to accord them as much deference as common law jurisprudence does. ICTY Judges have a more limited opportunity to assess demeanour. Perhaps where there are more objective indicators of possible lack of veracity of the testimony e.g. lack of corroboration, internal inconsistencies, and contradictions of prior declarations of the same witness the Judges should be more cautious in relying on demeanour alone when using the witness testimony as a foundation for conviction. She admits to being troubled by some of the fact-finding in the Tribunal decisions with which familiar with and suggests that the Appellate Chamber should be reluctant to uphold a conviction on appeal in the face of serious inconsistencies in a live witness’s testimony if the Trial Chamber relied solely or principally on the demeanour of the witness to assess her credibility.253 2.2.2 Duty to Follow Directions of the Tribunal Witnesses have a duty to answer questions and are usually reminded of this obligation and the prospect of being punished if they refuse to answer.254 They 250  Prosecutor v. Stanisic et al., Decision on Prosecution’s Submission of the Expert Report of Nena Tromp and Christian Nielsen Pursuant to Rule 94bis, IT-03-69-T, 18 March 2008, para. 9. 251  Galic Rule 92bis(C) Interlocutory Appeal para. 40. 252  Blagojevic Decision for Admission of Expert Statements para. 20. 253  Patricia Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’ (2002) Yale Human Rights and Development Law Journal 217, 238. 254  See Prosecutor v. Milosevic, Contempt Proceedings Against Kosta Bulatovic, Decision of Contempt of the Tribunal, IT-02-54-R77.4, 13 May 2005, para. 3 (hereinafter, Bulatovic Contempt case). This will be discussed in the next part.

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also have an obligation to provide testimony when summoned, Rule 98 provides that the Judges, may proprio motu summon witnesses and order their attendance”.255 In Halilovic, it was ruled that the Judges might issue a subpoena when it is necessary for the purposes of an investigation or for the preparation or conduct of the trial. This power includes the authority to require a prospective witness to attend at a nominated place and time in order to be interviewed where that attendance is necessary for the preparation or conduct of the trial.256 Also pursuant to Rule 54 at the request of either party the Judges may issue subpoena orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial. In deciding whether the applicants (parties) have met the evidentiary threshold, the Judges may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his/her case and whether this information is obtainable through other means.257 The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Judges considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.258 By analogy with applications for access to confidential material produced in other cases an order or a subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown. A party for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the trial.259 In Krstic, the Appeal Chambers held that it is competent to subpoena a State official to testify as to what he has heard in his official capacity and gave orders that subpoenas be issued requiring two potential witnesses to attend a defence interview.260 Judge 255  Prosecutor v. Blaskic Decision of Trial Chamber I in respect of the Appearance of General Enver Hadzihasanovic, IT-95-14, 25 March 1999. 256  Prosecutor v. Halilovic, Appeals Decision on the Issuance of Subpoenas, IT-01-48-AR73, 21 June 2004, para. 5 (hereinafter, Halilovic Appeals Decision on the Issuance of Subpoenas). 257  Ibid. para. 7. 258  Ibid. 259  Prosecutor v. Krstic, Appeals Decision on Application for Subpoenas, IT-98-33-A, 1 July 2003, para. 10 (hereinafter, Krstic Appeals Decision on Application for Subpoenas). 260  Ibid. paras. 20–24 & 29.

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Shahabuddeen was of the opinion that he did not agree the Chamber had the power to subpoena a State official to testify about what he has seen and heard in his official capacity.261 An earlier Blaskic262 decision did, he conceded, deal with documents, but “it seems . . . that . . . the reasoning logically extends to any other information acquired by the official in his capacity as a State official”, including information to be conveyed through testimony.263 He did not believe that any witness whether State official or not could be compelled to attend an interview, he acknowledged that the powers of the Chamber to issue subpoenas and orders under Rule 54 were broad, and encompassed the power to compel a witness to testify, but found that they did not encompass the power to compel a witness to attend an interview.264 A State official thought to have necessary information, should be subpoenaed as a witness to provide testimony. Such a witness should act in his personal capacity and testify, in Milosevic the Trial Chamber was of the opinion that there is no substantive difference between the requirements that must be satisfied for issuance of a binding order to a State and the requirements that must be satisfied for issuance of a subpoena to a State official.265 The Chamber, found that where, as in the case, it is seized of an application for an interview with and testimony from a specific State official as opposed to an application for information from a State which does not seek to summon a specific official as a witness, the appropriate procedural mechanism for summoning the official to interview and testify is a subpoena addressed to the individual official and not a binding order addressed to the official’s State.266 It went further to note that the majority view in Krstic distinguished the Blaskic Appeal Decision requiring a binding order to the State to compel the production of State documents on the basis that there is an inherent distinction between documents and testimony. Although it is for the State itself to determine which officials are responsible for the requested documents, witness testimony is necessarily specific to that particular individual and thus a subpoena addressed to that individual is appropriate.267 261  Ibid., Dissenting opinion of Judge Shahabuddeen. 262  Blaskic Croatia Review Decision paras. 49–51; see Analisa Ciampi, “Other forms of Cooperation,” in Cassesse, Gaeta and Jones The Rome Statute of the International Criminal Court, (vol. II, Oxford University Press, 2002) p. 171. 263  Ibid. para. 4. 264  Ibid. 265  Prosecutor v. Milosevic, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schroder, IT-02-54-T, 9 December 2005, para. 26. 266  Ibid. para. 27. 267  Ibid. para. 29.

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In determining whether to issue a subpoena, the Judges have first of all to take into account the admissibility and potential value of the evidence sought to be obtained pursuant to Rule 89(C)–(D). The Judges may also need to consider other factors such as testimonial privileges.268 For instance, in Simic the Judges made it clear that the International Committee of the Red Cross (ICRC) has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.269 Again, the applicant seeking a subpoena must make a certain evidentiary showing of the need for the subpoena. In particular, he must demonstrate a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. To satisfy this requirement, the applicant may need to present information about such factors as the position held by the prospective witness in relation to the events in question, any relationship the witness may have had with the accused which is relevant to the charges, any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the prosecution/ defence or others in relation to them.270 The Judges are vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused.271 Furthermore, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say. That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty. Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence or for taking his evidence by way of deposition for use later in the trial.272 Where an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that 268  See Rule 97. 269   Prosecutor v. Brdanin et al., Decision on Interlocutory Appeal, IT-99-36-AR73.9, 11 December 2002, para. 32 (hereinafter, Brdanin Decision on Interlocutory Appeals). 270  Halilovic Appeals Decision on the Issuance of Subpoenas para. 6; Krstic, Appeals Decision on Application for Subpoenas para. 11. 271  Ibid. 272  Krstic, Appeals Decision on Application for Subpoenas para. 8.

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person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted. An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness.273 The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition, where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.274 It was held in Krstic that the obligation of the defence to report to the Trial Chamber its inability to obtain the cooperation of a prospective witness is intended not only as a first step in exercising due diligence but also as a means of self-protection, in that a contemporaneous record then exists that the cooperation of the prospective witness had not been obtained. Such a report to the Judges does not by itself satisfy the obligation of due diligence. The defence must also seek relief from the Judges by which the uncooperative prospective witness will be compelled to cooperate.275 The requirement that “all mechanisms of protection and compulsion available” be used by the defence is not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling for whatever reason to cooperate.276 Finally, in Brdanin it was held that subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.277 Thus, a subpoena within the meaning of Rule 54 is a binding order issued under threat of penalty for non-compliance. An individual who does not comply with the requirements of a subpoena may be found in contempt of the Tribunal, either under Rule 77 or under the inherent contempt power of the Tribunal as will be discussed below.

273  Ibid. para. 17. 274  Ibid. para. 11. 275  Ibid. paras. 14–15. 276  Ibid. para. 9. 277  Brdanin Decision on Interlocutory Appeals para. 31.

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Criminal Sanctions

Witnesses owe a duty to the ICTY to testify, provide truthful testimony and obey orders such as answering questions and subpoena orders. If in violation, the witness will be held in contempt of Court and punished. The Court’s authority to sanction witnesses for contempt is not expressly outlined in the Statute but was inserted in the Rules by the Judges.278 In accordance with Rule 77, the Judges can conduct proceedings for contempt of court, which is not a statutory crime. Jurisprudence holds that the Tribunal possesses an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction expressly given to it by the Statute is not frustrated and that its basic judicial functions are safeguarded.279 Rule 77(A) provides that the Tribunal, in exercising its inherent powers, may hold in contempt those who knowingly and wilfully interfere with its administration of justice. The court retains its inherent contempt power notwithstanding any conflicting language in Rule 77.280 According to André Klip, the Tribunal only has the power to prosecute socalled “war crimes.” He argues that its mandate with all the ensuing duties of the States, derives from the Security Council and the ambit of that mandate is found in Article 1 of the Statute. Nothing in the Statute explicitly empowers the Judges to rule on criminal offences, which are not war crimes.281 The Judges have admitted that their rule making power did not allow them to create new criminal offences that care must be taken not to treat the considerable amount of elaboration which has occurred in relation to Rule 77 over the years as if it has produced a statutory form of offence enacted by them, notwithstanding

278  See Alexander Zahar, ‘International Court and Private Citizen’ (2009) New Criminal law Review 569, 578. 279  Prosecutor v. Tadic, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, IT-94-1-A-R77, 31 January 2000, para. 13 (hereinafter, Judgement on Allegations of Contempt against Vujin). 280  See Rule 77(E); Procedure for the Investigation and Prosecution of Contempt before the International Tribunal, 6 May 2004 available at http://www.icty.org/sections/LegalLibrary/ PracticeDirections (last visited November 2010); Michael Bohlander, ‘International Criminal Defence Ethcs: the law of Professional Conduct for defence Counsel appearing before International Criminal Tribunals’ (2000) San Diego International Law Journal, 75; Goran Sluiter International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 264–268. 281  Andre Klip, ‘Witnesses before the International Criminal Tribunal for the Former Yugoslavia’ (1996) Revue Internationale de Droit Pénal, 267, 276–277.

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the form in which Sub-rules (A)–(D) may be expressed.282 They affirm that Article 15 give them powers to adopt only Rules for the conduct of the pretrial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. That power does not permit Rules to be adopted which constitute new offences, but it however does permit them to adopt Rules for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction.283 It follows then that, having jurisdiction over witness crimes, can the ICTY require States in which a contemnor is residing to enforce any decisions taken under Rule 77 and to co-operate with the Prosecutor in the case of Rule 91 dealing with false testimony? According to Michael Bohlander one could imagine that States would refuse to assist the Tribunal in any matter regarding proceedings under Rules 77 and 91 on the basis that they do not fall under the jurisdiction of the ICTY and thus not even under the States’ general duty to co-operate apart from Article 29.284 In view of Bohlander’s argument, what’s the point of creating a Tribunal that deals with international crimes but does not have authority to deal with crimes that interferes with the Tribunal’s administration of justice? The Tribunal must protect its proceedings, it’s evidence and also the rights of the accused it must have the powers to punish all those who exercise conduct that has a negative effect such as harming the credibility of its evidence, proceedings and rights of the accused. The rule-making power was given to the Judges by States, by incorporating Article 15 into the Statute, States had the common understanding that the Judges should create rules which will guide them during proceedings before it, although not expressly stated this inherent authority also covers rules which deal with conduct that affects its administration of justice. Hence, States are obliged to cooperate in these matters as the Judges do have an inherent jurisdiction over contempt witnesses. Following, consistent jurisprudence has it that contempt power is inherent to the Courts, in Delalic, Judge Antonio Cassese noted that ‘the judges acting in plenary had the authority to adopt a Rule on contempt only by virtue of this inherent power. . .’285 Again in Tadic, it was held that the Tribunal possess 282  Judgement on Allegations of Contempt against Vujin para. 24. 283  Ibid. 284  Michael Bohlander, ‘International Criminal Defence Ethics: The law of Professional Conduct for defence Counsel appearing before International Criminal Tribunals’ (2000) San Diego International Law Journal 75, fn. 39. 285  Prosecutor v. Delalic et al., Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, IT-96-21-T,

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an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction expressly given to it by the Statute is not frustrated and that its basic judicial functions are safeguarded. As an international criminal court, the Tribunal therefore possess the inherent power to deal with conduct interfering with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law but not by reference to the wording of the Rule.286 Also, this inherent power exists independently of the terms of Rule 77 and the amendments made to the Rule from time to time it thereby does not limit that inherent power.287 According to the Tribunal’s jurisprudence, there are differences in the state of mind required for each of the various types of conduct envisaged in Rule 77. The mens rea has to be established on a case-by-case basis in relation to the conducts referred to in Rule 77(A). Thus, for each, criminal contempt, it has to be established that an accused (witness) acted with a specific intent to interfere with the administration of justice.288 There must be the element of contempt that is knowingly or wilfully interfering with the Court’s administration of justice by committing the act. In Aleksovski, for instance the Judges held that knowing means a deliberate violation and that the requirement knowledge could be met by actual knowledge or wilful blindness also known as deliberate ignorance.289 When a Chamber has reason to believe that a person may be in contempt of the Tribunal it may either direct the Prosecutor to investigate the matter with a view to preparing an indictment, or direct the Registrar to appoint an Amicus Curiae to investigate the matter and report back to the Chamber, or initiate proceedings itself in accordance with

11 November 1996 (hereinafter Delalic Motion Production of Notes); Micheal Bohlander, ‘International Criminal Tribunals and Their Power to punish Contempt and False Testimony’ (2001) Criminal Law Forum 91; Goran Sluiter, ‘The ICTY and Offences against the Administration of Justice’ (2004) Journal of International Criminal Justice 631, 633–635. 286   Judgement on Allegations of Contempt against Vujin paras. 13 &24; See Michael Bohlander, ‘International Criminal Defence Ethics: The law of Professional Conduct for defence Counsel appearing before International Criminal Tribunals’ (2000) San Diego International Law Journal, 75. 287  Prosecutor v. Simic et al., Judgement in the matter of Contempt Allegations Against an Accused and his Counsel, IT-95-9-R77, 30 June 2000, IV (hereinafter, Simic Judgement in the matter of contempt). 288  Prosecutor v. Brdanin, Decision on Motion for Acquittal Pursuant to Rule 98bis, IT-9936-R77, 19 March 2004, paras. 36–41. 289  Prosecutor v. Aleksovski, Judgement on Appeal by Anto Nobilo Against Finding of Contempt, IT-95-14/1-AR77, 30 May 2001, paras. 20 &45.

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Rule 77(C).290 The maximum penalty that may be imposed on a person found in contempt shall be a term of imprisonment not exceeding seven years or a fine not exceeding €100,000 pursuant to Rule 77(G).291 Furthermore, Article 24 and Rule 101 contain general guidelines for the Judges about the factors that should be taken into account when determining the punishment such as aggravating and mitigating factors and individual circumstances of the accused.292 While the Judges are obliged to take these factors into account when determining punishment they are not limited to considering them alone. They are vested with a broad discretion as to the weight to be accorded to these factors based on the facts of the particular case.293 2.3.1 Follow Directions of the Court The following section examines through case-law instances where the Tribunal has used or failed to use its authority to impose criminal sanctions on witnesses and their justification for doing so/or failing to do so. It will focus on two areas, refusing to answer questions and subpoena powers. 2.3.1.1 Refuse to Answer Questions: Case-law Witnesses have an obligation to answer questions and are usually reminded of this obligation and the prospect of being punished if found in contempt.294 There are no circumstances in which a witness can claim a right to refuse to answer questions. He/she may claim privilege in that event the Chamber would have a further decision to take on whether the witness should be required to answer.295 Once a witness refuses to answer questions he/she may be considered a hostile witness, for instance in Brdanin, it was held, that a hostile witness is one who is called by a party under the assumption that the witness will give testimony favourable to that party, but in fact that witness becomes a hostile witness saying exactly the opposite, or refusing to answer questions to which the calling party knows he/she has got a very straightforward answer.296 It is no excuse for refusing to answer questions in court for a witness to claim that he disagrees with a procedural decision made which had led to his 290  See Rule 77(F). 291  See Rule 77(H). 292  Jokic Contempt Trial Chamber judgement para. 38. 293  Ibid. 294  Bulatovic Contempt case para. 3. 295  Ibid., footnote 24. 296  Prosecutor v. Brdanin, Transcript, IT-99-36-T, 24 January 2002, page 806, lines 7–13; Halilovic Prior-Statement decision, pp. 4–5.

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being examined. In Bulatovic the Judges had made an order which they considered being within their powers and appropriate in the circumstances, that the witness was bound to answer the questions put by the Prosecutor, whatever his views were of that order and the propriety of proceeding in the absence of the Accused.297 The Judges held that where the issue is one of compliance with an order of the court, the “knowledge” required is knowledge of the making of the order requiring that the witness should answer. There is no question of special knowledge of the consequences of such refusal being required. It is therefore, an obvious consequence of refusing to comply with an order of the Judges that the administration of justice is interfered with. What the witness conduct amounted to in this case was a determination and declaration that he would give evidence only on his own conditions. In other words, he would control the circumstances in which he would give evidence. He defied the authority of the court and created the risk that the authority of the Trial Chamber would be undermined and the administration of justice would be brought into disrepute.298 The test here is knowingly and wilfully interfering with the Tribunal’s administration of justice by contumaciously refusing or refusing to comply with an order of the Judges to answer questions while being a witness pursuant to Rule 77(A)(i).299 In the Jokic Appeals contempt decision, the appeals Judges considered whether the Trial Chamber erred regarding the elements of contempt in Rule 77(A)(i). Jokic had submitted that the Trial Chamber erred in law in setting out the elements of the offence of contempt. He argued that the Trial Chamber failed to clearly distinguish the mens rea and actus reus of the offence.300 The Appeals Chamber dismissed Jokic’s arguments with regard to the definition of the elements of the offence of contempt.301 It recalled that the Trial Chamber found that Rule 77(A)(i) imposes criminal liability “where a witness knowingly and wilfully interferes with the Chamber’s administration of justice by persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber. Its ensuing discussion covered two main points: “Whether the Accused persistently refused or failed to answer a question without reasonable excuse while being a witness

297  Ibid. paras. 15–16. 298  Ibid. para. 7. 299  Ibid. paras. 9 & 16; Prosecutor v. Milosevic, Decision on Interlocutory Appeal on Kosta Bulatovic Contempt Proceedings, IT-02-54-A-R77.4, 29 August 2005, paras. 40–43. 300  Jokic Contempt Appeal Judgement para. 27. 301  Ibid. para. 32.

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before the Chamber and whether by refusing to testify the Accused knowingly and wilfully interfered with the Tribunal’s administration of justice”.302 While the Trial Chamber did not explicitly state what it considered to be the actus reus and mens rea of the offence, the Appeals Chamber understood from the structure that the Trial Chamber considered the actus reus to be persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber and the mens rea to be knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify.303 In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber noted that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in Milosevic, in which he argued that knowingly, wilfully and contumaciously under Rule 77 should be taken to mean an obstinate refusal to answer without reasonable excuse.304 The Appeals Chamber ruled that neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of the Rule. It considered however that, in any event, such an addition couldn’t be considered as going to the detriment of the accused (witness) for the reason that it is an addition i.e. it narrows the scope of the crime under the Rule.305 Judge Bonomy in Bulatovic has interpreted ‘contumaciously’ as ‘perverse’ in the context of the case stating that ‘the plain English meaning of contumacious conduct is behaviour that is stubbornly or wilfully disobedient to authority.306 In light of the plain meaning of contumaciously and interpretations, Judges Kwon and Bonomy opine that the unnecessarily problematic nature of interpreting contumaciously to imply a higher level of intent than ‘knowingly and wilfully’, the Judges find that Rule 77(A)(i) is imposing criminal liability where a witness knowingly and wilfully interferes with the chambers administration of justice by persistently

302  Ibid. para. 28. 303  Ibid. 304  Prosecutor v. Milosevic, Judge Kwon’s Dissenting Opinion to oral decision on K12, IT-0254-T-R77, 21 November 2002, para. 2. 305  Jokic Contempt Appeal Judgement para. 29. 306  Bulatovic Trial Judgement Seperate Opinion of Judge Bonomy on Contempt of Tribunal, 13 May 2005, para. 1.

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refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber.307 Furthermore, the Appeals Chamber in Jokic ruled that although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea, if “contumaciously” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent. In light of the phrase in the French version “malgre la demande qui lui en est faite par la Chambre”, the Judges held the crime under Rule 77(A) must be considered committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber in this case found no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.308 Thus, it considered that “contumaciously” falls within the actus reus of the offence and therefore does not create an additional element of the mens rea. Accordingly, the mens rea of contempt under Rule 77(A)(i) is knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify.309 Bulatovic Judges ruled that this type of witness conduct constitutes serious contempt of the Tribunal and would normally merit the immediate imposition of a custodial sentence in order to mark the gravity of the offence and to deter the witness, and others who might be tempted to follow the same course, from defying the authority of the Judges.310 The Judges are vested with broad discretion in determining an appropriate sentence due to their obligation to individualise the penalties to fit the circumstances of the accused and the gravity of the crime. This discretion includes determining the weight given to aggravating or mitigating circumstances.311 In Jokic for instance the Judges were convinced beyond reasonable doubt that, by persistently refusing to testify without a reasonable excuse in the case, the witness knowingly and wilfully interfered with the Tribunal’s administration of justice.312 The Judges 307  Jokic Contempt Trial Chamber Judgement para. 12. 308  Jokic Contempt Appeal Judgement para. 30. 309  Ibid. para. 31. 310  Bulatovic Contempt case paras. 18–19. 311  Jokic Contempt Appeal Judgement para. 40. 312  Jokic Contempt Trial Chamber Judgement paras. 36–37.

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thereby found him guilty of contempt of the Tribunal, pursuant to Rule 77(A)(i). In deciding the punishment to be imposed, they took into consideration both the gravity of the conduct involved and the need to deter such conduct in the future. The Judges considered that Jokić committed a serious offence, which goes to the essence of the notion of justice. By his refusal to testify he deprived the Chamber of relevant evidence and acted against the interests of justice. He was sentenced to a single term of imprisonment of four months.313 2.3.1.2 Subpoena: Case-law When a witness is subpoenaed he/she should respect the order and is under the duty to come provide evidence.314 Pursuant to Rule 77(A)(iii) a witness will be held in contempt if ‘without just excuse fails to comply with an order to attend before . . . a chamber’.315 Where a witness fails to comply with a subpoena or an order issued by the Judges normally the Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance. The national legislation of some States on co-operation with the Tribunal provides for this possibility. The Appeals Chamber in Blaskic held that legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. For instance, where from the outset the Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or defence, on the assumption that the authorities of the State or Entity would either prevent the Tribunal from fulfilling its mission or be unable to compel a State official to comply with an order issued under Article 29. In these circumstances, it may prove pointless to request those national authorities to enforce the Tribunal’s order through national means. The remedies available to the Tribunal range from a general power to hold individuals in contempt of the Tribunal utilising the inherent contempt power to the specific contempt power provided for in Rule 77.316 Petkovic is the first judgement rendered by the Court under Rule 77(A)(iii).317 Petkovic was a prosecution witness in the Seslj case who failed to answer the

313  Ibid. paras. 38 & 40–43. 314  Bulatovic contempt case paras. 16–17. 315  Rules 39 & 54. 316  Blaskic Croatia Review Decision paras. 57–60. 317  In the Matter of Ljubica Petkovic, Judgement, IT-03-67-R77.1, 11 September 2008, para. 25 (hereinafter, Petkovic Contempt Judgement); See also In the Contempt case of Radislav

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Tribunal’s confidential subpoena to appear as a Court witness.318 The Judges considered that the actus reus of the offence of contempt was constituted by the absence of the witness at a hearing of 13 May 2008.319 They also considered whether the circumstances surrounding the notification of the subpoena and a deterioration of the state of health of the witness could amount to “just excuses” pursuant to Rule 77(A)(iii).320 It was ruled that the witness had not established the existence of just excuses pursuant to Rule 77(A)(iii). First, considering all the elements in his possession, the witness could not reasonably doubt that he was the addressee of the subpoena.321 Secondly, that though psychologically fragile, he was not in a state of health, which prevented him from informing the Judges that he could not comply with the subpoena.322 Accordingly, the mens rea of the offence was thus constituted by the fact that the witness, instead of complying with the obligations imposed on him by the Subpoena, voluntarily failed to execute it by choosing to escape, without just excuses. As a consequence, he knowingly and wilfully interfered with the administration of justice.323 In addition the Judges held that in a statement made by the witness noting that “under normal circumstances, it would have been an honour and a pleasure for me to testify before this Tribunal and to tell the truth that I do know”. The witness was therefore fully aware that his testimony was particularly crucial in the case against Seslj but he still decided not to obey the order.324 It was therefore established beyond reasonable doubt that the witness was guilty of the offence of contempt pursuant to Rule 77(A)(iii). The Judges underlined the gravity of the offence for which the witness was found guilty. It recalled that witnesses are not the property of the parties and that when the Judges decided, by way of subpoena, that their testimony is necessary for the establishment of the truth, they have to comply with it. Besides, when ordered to appear as a Trial Chamber witness pursuant to Rule 98, the witness could not refuse to comply with the subpoena stating that he was a “Defence witness”.325 In its determination of the sentence, the Judges took into consideration the Krstic, Order in Lieu of Indictment, IT-95-5118-R77.3, 27 March 2013, para. 9 (hereinafter Krstic contempt case). 318  Ibid. paras. 3–6 & 11–12. 319  Ibid. para. 42. 320  Ibid. paras. 44–53. 321  Ibid. paras. 45 & 48. 322  Ibid. para. 52. 323  Ibid. paras. 54 & 58. 324  Ibid. para. 63. 325  Ibid. paras. 64.

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gravity of the offence, the general sentencing practice of the courts of the former Yugoslavia and the jurisprudence of the Tribunal as well as the aggravating circumstance constituted by the failure of the witness to comply, for the second time, with an order of the Trial Chamber. Due consideration was also given to the following mitigating circumstances: the absence of any prior criminal history, the fact that the witness voiced excuses for his conduct and the family and personal circumstances of the witness. He was, sentenced to four months imprisonment.326 Finally, it must be added that, if a subpoenaed witness fails to attend contempt proceedings, in absentia proceedings should not be ruled out. In absentia proceedings may be exceptionally warranted in cases involving contempt of the Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice.327 According to the Judges, these cases fall within the ancillary or incidental jurisdiction of the International Tribunal. However, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. If the Judges decide to address a subpoena duces tecum or ad testificandum directly to an individual living in a particular State, and at the same time notifies the national authorities of that State of the issue of the subpoena, this procedure will make it easier for those national authorities to assist the Tribunal by enforcing the orders in case of non-compliance. If, by contrast, the Judge or Chamber decides not to notify those national authorities, the only response by the Tribunal to an individual’s failure to obey the subpoena will, necessarily, be resort to its own contempt proceedings.328 2.3.2 False-Testimony A number of authors comment on the motive of witnesses to provide testimony at the ICTY, for instance, Sean Murphy observes that ever since trials commenced at the ICTY there have been concerns about the accuracy of witness testimony before the Tribunal. In part attributable to the circumstances under which, acts were witnessed often by persons in deep distress or shock, and in part due to ethnic enmities that may promote false testimony.329 326  Ibid. paras. 59–70. 327  Blaskic Croatia Review Decision para. 59. 328  Ibid. paras. 57–60. 329  Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) American Journal of International Law 57, 88–89.

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Christin Coan writes of the need for a higher level of protection of witnesses as many have been coerced into testifying falsely.330 According to Ackerman, an ICTY defence lawyer, “Revenge is big in the Balkans,” witnesses from the former Yugoslavia have a low regard for the oath to tell the truth, and are often motivated by ethnic hatred or revenge. He observes that it has been necessary to call large number of defence witnesses to impeach prosecution witnesses anxious to avenge the wrongs done to them in Bosnia.331 However, Stover has a different story, he writes that the desire of witnesses “to tell the world the truth” was not fuelled by the need for vengeance, although some witnesses, and especially those who had been raped or tortured or watched as their families were slaughtered, certainly harboured such fantasies. “It was not a question of revenge,” one man put it “I just wanted to meet the accused on the same level and to remind him of what he did to me and my family.”332 This account by witnesses and assertion by Stover however does not completely reflect what happens at the Tribunal as it has been proven that some ICTY witnesses have provided false testimony. This will be analysed in preceding section and also evidenced by the Judges creating a rule that sanctions false-testimony. Texts for false testimony is not provided for in the ICTY Statute, nevertheless to bring to rest concerns of witnesses providing untruthfulevidence, the Judges created rules which provide for the punishment of false testimony under solemn declaration. Rule 91 provides for false testimony under solemn declaration, Prlic Judges considered that a solemn declaration before a statement is given is significant in terms of its possible probative value, only if it is accompanied by sanctions for false testimony and that only in cases where there is provision for this sanction could such a statement have more probative value than an unsworn statement.333 Rule 91(A) provides ‘a Chamber, proprio motu or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so’. The Judges held in Kupreskic that once witnesses have made the solemn declaration to tell

330  Christin Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime the International Criminal Tribunal for the Former Yugoslavia North Carolina’ (2000) Journal of International Law and Commercial Regulation 183, 218. 331  Peter Robinson, ‘Defending War Criminals in the Hague’ (2000) Champion 1, 34–38. 332  Stover Witness Report paras. 55. 333  Prosecutor v. Prlic et al., Decision on Praljak Defence Notice Concerning Opening Statements under Rules 84 and 84bis, IT-04-74-T, 27 April 2009, p. 9 (hereinafter, Prlic Defence Notice concerning Opening Statements).

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the truth before the Trial Chamber in accordance to Rule 90(A), they become ‘witnesses of truth’ or ‘witnesses of justice’.334 The Tribunal must have strong grounds to believe that a witness has knowingly and wilfully given false testimony. In accordance to Rule 91(B) there must be intent to knowingly and wilfully giving false testimony. In addition, Rule 91(H) provides that paragraphs (B)–(G) apply mutatis mutandis to a person who knowingly and willingly makes a false statement in a written statement taken in accordance with Rule 92bis or Rule 92quater which the person knows or has reason to know may be used as evidence in proceedings before the Tribunal. If the Judges have strong grounds to believe that a witness has intentionally provided false testimony pursuant to Rule 91(B)(i) they may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony. If the Chamber considers that there are sufficient grounds to proceed against a person for giving false testimony, the Chamber may: (i) in circumstances described in paragraph (B)(i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (B)(ii), issue an order in lieu of an indictment and direct amicus curiae to prosecute the matter. The rules in parts four to eight of the RPE shall apply mutatis mutandis to proceedings under this Rule.335 According to Rule 91(G) the maximum penalty for false testimony under solemn declaration shall be a fine of 100, 000 Euros or a term of imprisonment of seven years, or both. The payment of any fine imposed shall be paid to the Registrar to be held in the account referred to in Rule 77(H).336 2.3.2.1 Case-law Ever since ICTY trials began there have been no sanctions on witness contempt for false testimony under Rule 91(B). Critics have held that less importance is being placed on witnesses, who actually commit crimes of perjury condemning the handling of these contempt cases by the Judges.337 For instance, in 334  Kupreskic Communication Decision; Jelisic Communication Decision. 335  Rule 91(C)–(D). 336  See Micheal Bohlander, ‘International Criminal Tribunals and Their Power to punish Contempt and False Testimony’ (2001) Criminal Law Forum 91, 95. 337  See Alexander Zahar, ‘The Problem of false Testimony at the International Criminal Tribunal for Rwanda,’ in Andre Klip and Goran Sluiter eds., Annotated Leading Cases of International criminal Tribunals, Vol. 25: the International Criminal tribunal for the Former Yugoslavia 2006–2007 (Intersentia, 2010); Goran Sluiter, ‘The ICTY and Offences against the Administration of Justice’ (2004) Journal of International Criminal Justice 631, 637–641; William A.Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pp. 855–856.

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Tadic, the defence successfully found discrepancies in the testimony of one of the prosecution witnesses, Dragan Opacic. Confronted with the discrepancies, Opacic admitted that he had lied under oath in testifying that he had seen Tadic commit acts charged against him.338 The Prosecutor informed the Judges that she no longer regarded Opacic as a witness of truth and invited the Judges to disregard his testimony. The Judges directed the Prosecutor to investigate “the matter of the presentation of false testimony by Opacic and evaluate the possibility of the preparation and submission of an indictment against him.”339 The Prosecutor however informed the Judges that she “did not consider that the case of Dragan Opacic was an appropriate case for prosecution under Rule 91.340 As a result Opacic was never prosecuted for providing false testimony even though he admitted to lying under oath. Robert Hayden observes that the Prosecutor had never shown greater zeal in determining the truth of the witness’s story before the defence challenged basic facts about it, an especially interesting question since the Prosecutor knew the identity of the witness and the defence, by virtue of the protection order, did not. He suggests that some parts of the witness’s story seemed to indicate that the Prosecutor’s office might also have been involved in training him to give false testimony, the Tribunal in effect asked the Prosecutor to investigate possible wrong doing by her own office, while offering no support to the defence in its own efforts to investigate the matter. To make matters even more odd, neither the Judges nor Prosecutor showed any interest in determining whether the witness had in fact, been threatened by the Bosnian government.341 By not prosecuting this witness, the Tribunal failed in its obligation to uphold its cosmopolitan image i.e. one that promotes cosmopolitan ideals and principles. The Judges also failed to use the safeguards in place to prevent bias 338  In the Case of Dragan Opacic, Decision on Application for Leave to Appeal, IT-97-7Misc.1, 3 June 1997 (hereinafter Opacic Decision on Application for Leave to Appeal); see also Sean D. Murphy, ‘Progress and Jurisprudence of the International Criminal tribunal for the Former Yugoslavia American’ (1999) Journal of International Law 57, 88–89. 339  See ICTY Press Release Tadic Case: Update Witness Opacic appeals against the order that he be returned to the custody of Bosnia and Herzegovina, CC/PIO/207-E The Hague, 2 June 1997 available at http://www.tpiy.org/sid/7516 (last visited July 2012); Prosecutor v. Tadic Decision on Prosecution Motion to Withdraw Protective Measures for Witness ‘L’, IT-94-1-T, 5 December 1996; Prosecutor v. Tadic, Order for the Prosecution to Investigate the False Testimony of Opacic, IT-94-1-T, 10 December 1996 (hereinafter, Order for the Prosecution to Investigate the False Testimony of Opacic). 340  Ibid. 341  Robert M. Hayden, ‘Biased ‘Justice: ’ Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia’ (1999) Cleveland State Law Review 549, 562–563.

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and injustice in perjured cases. For instance, where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, will direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating proceedings for false testimony.342 It is worth stating here that if the case went to trial, no Judge who sits as a member of the Trial Chamber before which the witness appeared shall sit for the trial of the witness for false testimony.343 Rule 77 contains safeguards to ensure the impartiality of the Chamber, including the ability to assign the case to another Chamber where in ‘exceptional circumstances’ the impartiality of a Chamber may be called into question.344 As observed nobody has been sanctioned before the ICTY for false testimony under Rule 91. However, a witness has been sanctioned under Rule 77 for receiving bribe and providing false statements. The question is why this witness was not sanctioned under Rule 91 for providing false testimony. The Tribunal’s own Rule 91(H) provides for the punishment of a witness who knowingly and willingly makes a false statement that the person knows will be used as evidence in proceedings before the Tribunal. Instead of sanctioning the witness under the said rule, Zuhdija Tabaković a potential witness in the Lukic case was convicted for contempt pursuant to Rule 77(A) and sentenced to three months’ imprisonment.345 The indictment charged him with six counts of contempt punishable under Rule 77(A)–(B). It was alleged that Tabakovic had been given a bribe of 1, 000 Euros, by the then case manager for the Milan Lukic defence team, for signing a false statement to be used in that case. It was also alleged that at the request of case manager, the Accused (witness) located two other men who were prepared to sign false statements for the same purpose and to have introduced these men to the case manager, false statements were made by these two men. A summary of the material parts of these statements was then included in the Lukic defence Rule 65ter Witness List and filed in the Tribunal and the substance of them was served on the prosecution.346 342  Rule 91(B)(ii). 343  Rule 91(F). 344  See In the case against Florence Hartmann, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, IT-0254-R77.5, 27 March 2009, paras. 38–39; In the case against Florence Hartmann, Decision on Motion for Disqualification, IT-02-54-R77.5, 18 February 2009. 345  Prosecutor v. Tabakovic, Sentencing Judgement, IT-98-3211-R77.I, 18 March 2010 (hereinafter, Tabakovic Sentencing Judgement). 346  Ibid. paras. 1–7; see Prosecutor v. Tabaković, Indictment, IT-98-32/1-R77.1.

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Again, the Judges failed in their duty to sanction the witness and the two men who provided false statements pursuant to Rule 91. Instead the Judges ruled that an offence of contempt involving bribery of a potential witness would normally warrant a significant term of imprisonment. In the circumstances of the present case, however, there were powerful mitigating circumstances, which in the Judge’s view weighed heavily in favour of the witness. The witness had emphasized his apologies and his remorse for his conduct, although the Judges held that his conduct in bringing the matter to the attention of the OTP and his guilty pleas had already served to demonstrate the genuineness of the remorse he felt.347 In dealing with sanctions, the Judges had the benefit of a summary of penalties in cases of contempt dealt with in the ICTY and ICTR. For the most part, according to the Judges the circumstances of these offences differed materially from those of this case and little guidance could properly be drawn from earlier cases. Having regard to all the circumstances, and in particular to the matters more expressly considered in these reasons, and in accordance with Rule 101, the Judges were persuaded that they should impose a single sentence of imprisonment for three months.348 2.4 Conclusion After examining some of its practice and jurisprudence with regards to witnesses, is the ICTY committed to cosmopolitan principles as indicated in chapter one? This conclusion highlights some aspects were the Tribunal upheld its obligation and areas where it failed to do so. Through witness proofing the Tribunal has exhibited cosmopolitan principles as witness proofing not only guarantees the rights of the accused but also protects the Tribunal’s evidence.349 Also the MOU between the VWS and the witness is a necessary agreement as it sets out the rights and obligations of the VWS and the witness.350 This is significant, as the witness knows he/she is obliged to give evidence, not commit any crimes before the Tribunal, accept and give effect to the requests and directions made by the Tribunal.351 Furthermore, pursuant to Rule 90(F) the Judges 347  Ibid. paras. 12 & 14; see also ICTY press release Tabaković Pleads Guilty, Sentenced to Three Months’ Imprisonment 15 March 2010 available at http://www.icty.org/sid/10359 (last visited March 2010). 348  Ibid. paras. 15–16 & 19. 349  See Jelisic Communication Decision; Limaj Practice of Proofing Witnesses pp. 2–3. 350  ICTY Manual on Developed Practices p. 203. 351  Ibid.

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are vested with authority to ascertain the truth. As fact-finders the Judges have exercised authority over witness testimony, by assessing the truthfulness and trying to accord the proper weight to witness evidence.352 In a good number of cases the Judges have used their discretion to take decisions as to whether a particular piece of testimony should be admitted for the purposes of assessing witness credibility and/or for the substance. They regard the demeanour, conduct and circumstances of each witness so as to assess their reliability. Through cross-examination, the use of prior statements and prior inconsistent statements for instance the Judges test the veracity of testimony, possibility to impeach witnesses, identify potential bias or partiality on the part of witnesses and whether the witness might have a motive for giving false testimony.353 However, in some instances such as in Krajisnik the Judges failed to uphold their obligation to guarantee the rights of the accused by accepting a part of the testimony of witnesses who might have had certain interests or motives to implicate the accused. They should have discredited the entire testimony of these witnesses.354 The Tribunal has inherent authority over witnesses. Consistent jurisprudence holds that, the ICTY has an inherent jurisdiction to ensure that its administration of justice is not obstructed, prejudiced or abused.355 The necessity to punish all witness conduct, which tends to obstruct, prejudice or abuse the administration of justice, is intended to ensure that the exercise of the jurisdiction which is expressly given to it by the Statute, is not frustrated and that its basic judicial functions are safeguarded.356 Hence, by exercising authority over witnesses who failed in their obligations to testify or refuse to answer questions or obey subpoena in Jokic, Bulatovic, Petkovic and Krstic respectively the Judges upheld their cosmopolitan grounding.357 Finally, the Judges exercised the authority vested in them to create Rule 91 that prosecutes and sanctions witnesses for false testimony. The witness before testifying is

352  See Milosevic voire dire proceedings p. 5; Popovic Appeals Decision on Impeachment para. 32; Prlic Questioning into Evidence para. 57; Popovic Interlocutory Appeal para. 31. 353  See Kordic Appeal Decision on deceased Witness paras. 20 & 27; Blaskic defence motion for protective measures para. 10; Limaj Decision to admit Prior Statement para. 31–32; Stanisic Admission into Evidence of Prior Testimony para. 6; Delalic Exclusion of Evidence para. 137. 354  Krajisnik Appeal Judgement paras. 146–152. 355  Judgement on Allegations of Contempt against Vujin paras. 13 & 24; Delalic Motion Production of Notes; Simic Judgement in the matter of contempt. 356  See Petkovic Contempt Judgemnet paras. 25–26. 357  See cases referred under sections 2.3.1.1 & 2.3.1.2.

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warned about the consequences of providing false testimony.358 The Judges were right in holding that a solemn declaration before a statement is given becomes significant if accompanied by sanctions for false testimony.359 Once a witness has made the solemn declaration he/she becomes a witness of truth and justice.360 The availability of the rule and the safeguards in place are all a necessary means to protect the credibility of its proceedings, evidence and the rights of all. However, despite the creation of Rule 91 and since its establishment there has been no prosecution on false testimony. This is problematic taking into account the thousands of witnesses who have come before the Tribunal to provide testimony. The Tribunal has failed in its incumbent obligation to punish witnesses for false testimony. Its failure to investigate and prosecute allegations of witness false testimonies, as seen in Opacic and Tabakovic destroys its cosmopolitan grounding. It failed to assert its authority and jurisdiction to sanction false witnesses.361

358  Rule 91(A). 359  See Prlic Defence Notice concerning Opening Statements p. 9. 360  Kupreskic Communication Decision; Jelisic Communication Decision. 361  Opacic Decision on Application for Leave to Appeal; Order for the Prosecution to Investigate the False Testimony of Opacic; Tabakovic Sentencing Judgement.

Chapter 3

International Criminal Tribunal for Rwanda Following its creation in 19941 thousands of witnesses have presented testimony before the ICTR. The Tribunal’s judicial process has been centred on witness testimony as the corner stone of the trial process and the basis for the determination of individual criminal responsibility.2 The reason being, with respect to many important elements of the indictment, no other evidence than testimonial evidence has been available. Documentary evidence was hard to come by, hence created the necessity to base cases on testimonial evidence.3 Like chapter two, this chapter shall examine the ICTR witness-scheme with its treaty4 and Rules5 similarly structured to that of the ICTY. In seeking to establish jurisdiction and judicial authority over witnesses and the justification of imposing sanctions on them, the chapter explains what the Tribunal has been doing through relevant case law. It evaluates its practice in light of the cosmopolitan reading as indicated in chapter one. In so doing, establishes 1 See About ICTR available at http://www.unictr.org/AboutICTR/GeneralInformation/ tabid/101/Default.aspx (last visited March 2013); see also Adama Dieng, ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403 at 403–422; Lilian A. Barria and Steven D. Roper, ‘How Effective are International Criminal Tribunals? An Analysis of the ICTY and the ICTR’ (2005) The International Journal of Human Rights 349. 2 Mohamed Othman, ‘The Protection of Refugee Witnesses by the International Criminal Tribunal for Rwanda’ (2002) International Journal of Refugee Law, 495, 495; FrancoisXavier Nsanzuwera, ‘The ICTR Contribution to National Reconciliation’ (2005) Journal of International Criminal Justice 944, 946 fn. 4; Richard May, ‘The Collection and Admissibility of Evidence and the Rights of the Accused, in Justice for Crimes Against Humanity’ in Mark Lattimer & Philippe Sands (eds) Justice for Crimes against Humanity (Hart Publishing, 2003) pp. 161 & 165; Joanna Pozen, ‘Justice Obscured: The non-disclosure of witnesses identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 281. 3 Goran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 964; ICC Sixth Session of the Assembly of States Parties, 30 November– 14 December 2007, New York, ICC-ASP/6/INF.2, p. 42 para. 5 (hereinafter, ICC Sixth Session ICC-ASP/6/INF.2). 4 Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, S.C.Res.955, U.N. Doc. S/RES/955, available at http://www.unictr.org/Portals/0/English%5CLegal%5CStat ute%5C2010.pdf (last visited February 2011). 5 ICTR Rules of Procedure and Evidence available at http://www.unictr.org/Portals/0/ English%5CLegal%5CROP%5C100209.pdf (last visited February 2011).

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to what extent the Tribunal exhibits cosmopolitan features. Can the claim that the ICTR is cosmopolitan be substantiated by the way the Tribunal functions through its practice and jurisprudence with regards to witnesses? 3.1

Witness Journey

3.1.1 Sourcing A major challenge for the ICTR was the diverse geographical spread of witnesses. Witnesses came from Rwanda and abroad. The prosecution for instance used a large number of informants and witnesses who resided outside Rwanda. Informers, many of whom became witnesses, were tracked down in 26 different countries by the prosecution.6 The international community also supported in bringing to the Tribunal, over 2000 witnesses from more than 40 countries.7 Furthermore, the ICTR Investigation Unit went to great lengths to ensure the continued availability of witnesses for future proceedings. It has guidelines and manuals for investigators, outlining basic instructions to carry out missions and interviews with witnesses. It also maintains a database with the list of witnesses and has contacts with witnesses on a quarterly basis.8 According to Chris Mahony, cultural sensitivity was an imperative in order to obtain information from witnesses, especially in cases involving sexual violence offences. Local elements had to be incorporated in the investigation process, as communication with the witnesses was very sensitive. The gender perspective also had to be considered, as most witnesses were women who also turned out to be victims as well.9 3.1.2 Modelling 3.1.2.1 Crime-Based A majority of the witnesses before the Tribunal have been eyewitnesses, either victims or survivors of the genocide importantly rape victims. Others include, several detainees in Rwanda acting as crime-based witnesses or UN officials 6 Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 66–67. 7 ICC sixth session ICC-ASP/6/INF.2, p. 42 para. 6; Report of the International Criminal Tribunal for Rwanda, A/65/188–S/2010/408, 30 July 2010; Francois-Xavier Nsanzuwera, ‘The ICTR Contribution to National Reconciliation’ (2005) Journal of International Criminal Justice 944, 946 fn. 4. 8 Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 66–67. 9 Ibid; see also ICC sixth session ICC-ASP/6/INF.2, p. 42 para. 5.

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who may be witnesses based on events they may have witnessed while serving as a UN staff member.10 Through eyewitness testimony the Tribunal enriched the definition of genocide by holding that rape when perpetrated in a certain manner, could constitute a crime that forms part of a genocidal scheme.11 As stated in chapter one, the witnesses in Akayesu in recounting their stories help develop international law, thereby benefitting the global community in the wider definition of rape and future punishment of the crime.12 3.1.2.2 Expert-Witness The ICTR has relied on expert-witness testimony to establish certain crimes under its jurisdiction.13 The role of an expert-witness was described in Semanza as to supply specialized knowledge that might assist the trier of fact in understanding the evidence before it. Expert-witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon first-hand knowledge or experience. Indeed, in the ordinary case the expert-witness lacks personal familiarity with the particular case, but instead offers a view based on his/her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie

10 Prosecutor v. Bagosora et al., Decision on Request for Subpoena of Major General Yaache and Cooperation of the Republic of Ghana, ICTR-98-41-T, 23 June 2004, para. 5 (hereinafter, Bagosora Subpoena Decision). 11 See Adama Dieng, ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403–422, 404. 12 Prosecutor v. Akayesu, Judgement, ICTR-96-4-T, 2 September 1998, paras. 416–417 & 686– 688 (hereinafter, Akayesu Judgement); Yael Weitz, ‘Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement’ (2009) Cardozo Journal of Law & Gender 357, 366–369; Kingsley Chiedu Moghalu, ‘International Humanitarian Law from Nuremberg to Rome: The Weighty Precedents of the International Criminal Tribunal for Rwanda’ (2002) Pace International Law Review 273, 282–283; Rana Lehr-Lehnardt, ‘One Small Step for Women: Female-friendly Provisions in the Rome Statute of the ICC’ (2002) Journal of Public Law 317, 328–329; Beth Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as an Object Lesson,’ (2009) American University Journal of Gender, Social Policy and the Law 361, 369–370 & 392; Valerie Oosterveld, ‘Gender-sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the ICC’ (2005) New England Journal of International and Comparative Law 119, 121–122; Kellye L. Fabian, ‘Proof and Consequences: An Analysis of the Tadic & Akayesu Trials’ (2000) DePaul Law Review 981; Matthew J. Burnett, ‘Remembering Justice in Rwanda: Locating Gender in the Judicial Construction of Memory’ (2005) Seattle Journal for Social Justice 757, 765–766. 13 Ibid., paras. 340, 557–558 & 673.

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outside the layperson’s ken.14 While the report and testimony of an expertwitness may be based on facts narrated by ordinary witnesses or facts from other evidence, an expert witness cannot, in principle, testify himself/herself on the acts and conduct of accused persons.15 Without having been called to testify also as a factual witness and without his/her statement having been disclosed in accordance with the applicable rules concerning factual witnesses. Thus, an expert-witness may testify on certain facts relating to his/her area of expertise.16 In Karemera, the judges held that a purported expert report did not qualify as expert evidence; they did not require such expert opinion.17 The Chamber acknowledged that two expert-witnesses had likely been of value and assistance to the Prosecution in the development of its theories and the selection of evidentiary material to prove them. However, the fact that this assistance was provided did not mean that the testimony of these experts was necessary for the Chamber in its analysis of the case. The Chamber considered that an expert’s testimony is intended to enlighten the Judges on specific issues of a technical nature, requiring special knowledge in a special field. However, the matters at stake in the case were not those on which the Chamber required expert assistance and they were able to make judgement without such assistance.18 Rule 94bis governs expert-witness testimony, sub-paragraph (B) provides that a party must, within 14 days of receipt of an opposing party’s expert’s qualifications and report, file a notice stating whether it accepts that expert’s qualifications and report and whether it wishes to cross-examine the expert. The Judges may order voir dire proceedings if a party challenges, the qualifications of a witness as an expert. In Bizimungu it was ruled that the party that offers the witness must satisfy the Chamber that the witness is an expert in the area for which he is being called to testify. At such a hearing, the party that offers the witness leads the witness in chief on his qualifications and expertise, 14

Prosecutor v. Semanza, Appeal Judgement, ICTR-97-20-A, 20 May 2005, para. 303 (hereinafter, Semanza Appeal Judgement). 15 Also, an expert-witness cannot pronounce on the criminal responsibility of the accused. Prosecutor v. Bizimungu et al., Decision on the admissibility of the expert testimony of Binaifer Nowrojee, ICTR-99-50-T, 8 July 2005, para. 12. 16 Prosecutor v. Nahimana et al., Appeal Judgment, ICTR-99-52-A A07-0137(E) 88, 28 November 2007, para. 212 (hereinafter, Nahimana Appeal Judgment); See Rules 66(A)(ii), 73bis(B)(iv)(b) and 73ter(B)(iii)(b). 17 Prosecutor v. Karemera et al., Decision on Prosecution Motion for Reconsideration of the Decision on Prospective Experts Guichaoua, Nowrojee and Des Forges, or for Certification, ICTR-98-44-T, 16 November 2007 paras. 13–14. 18 Ibid.

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following which the opposing party cross-examines the witness. Having heard the testimony and submissions on the question of qualification, the Chamber shall then decide on the said preliminary issue.19 In Nahimana one of the Appellants, questioned the qualification of an expert-witness; criticizing the Judges for having failed to consider the witness’ lack of qualifications and expertise in sociolinguistics.20 The Appeals Chamber noted that the Trial Chamber authorized the expert-witness to testify as an expert following voir-dire proceedings, during which the parties had the opportunity to put forward their objections and arguments, and then to examine and cross-examine the witness in order to test both his qualifications and his neutrality. The Chamber held it could discern no error in the Trial Chamber’s decision to accept the witness as an expert-witness in sociolinguistics, since the Appellant had not establish on appeal that the Trial Chamber exceeded its discretion in finding that the witness training, experience and knowledge of Kinyarwanda, English and French qualified him to give views of a technical nature on the meaning of the matters in question.21 In addition the mere fact that an expert witness is employed by or paid by a party does not disqualify him/her from testifying as an expert-witness.22 Again in Nahimana the Appellant contended that the expert-witness was biased because he was a salaried employee of the Tribunal. The chamber held that the Appellant put forward no argument to establish that in this way the Trial Chamber abused its discretionary power by qualifying the witness as an expert.23 According to Peter Robinson one peculiar feature of the ICTR is its use, or some would say misuse, of expert-witnesses.24 He observes that at the Tribunal, an expert-witness can testify to facts that he/she has read in a book, heard through third parties, or concluded from other facts. Most experts have written extensively on the subject they are testifying about. He suggests that it is necessary to do one’s own investigation to gather the writings of the expert, even on other topics, for material which could call into question their objectivity or which contradicts assertions made in a case.25 In my view, the 19

Prosecutor v. Bizimungu et al., Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, ICTR-99-50-T, 24 March 2005, p. 2. 20 Nahimana Appeal Judgment, para. 278. 21 Ibid., paras. 279–281. 22 Ibid., para. 282. 23 Ibid., para. 279. 24 Peter Robinson, ‘So You want to be an International criminal lawyer?: Getting and Defending a Case at the International Criminal Tribunal for Rwanda’ (2008) New England Journal of International and Comparative Law 277, 290. 25 Ibid.

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most important factor is for the expert witness to assist the Tribunal with the information about the specialist area that is necessary before a decision could be made by the latter. The distinctive role of the expert witness therefore is with regard to their ability to express an opinion that might assist the trier of fact in understanding the evidence before it.26 3.1.2.3 Insider-Witnesses The ICTR makes use of insider-witnesses. In Serushago for instance, the Judges considered as mitigating circumstances the fact that the accused cooperated with the Prosecutor. Thus, resulting in the arrest and detention of several highranking officials suspected of committing crimes during the genocide, and he agreed to testify as a prosecution witness in other trials before the ICTR.27 As observed in chapter two, the use of insider witnesses is an appropriate practice as it enables the Judges not only to obtain all evidence necessary to adduce the guilt or innocence of the accused but also to better understand the motive and mind of the accused. However, Judges need be cautious when receiving such evidence, having due regard as to the motive of the insider witness as some of them may provide testimony either with the intention to convict/acquit the accused or as a bargaining chip/assurance not to be prosecuted or to gain from the witness protection scheme. For instance the ICTR has relocated and provided security for a number of insiders who have testified against their former associates and this benefits provide a crucial incentive to testify.28 3.1.3 Cost/Inducements The Witness and Victims Support Section (WVSS) pays standard benefits to witnesses that are related to transport, accommodation, loss of income, and support for minor dependents because of the prolonged absence of a single parent. Additionally, WVSS pays for the basic relocation expenses associated with witnesses who are entitled to protective measures. These benefits are provided to all witnesses regardless of whether they testify for the defence or 26 See Semanza Appeal Judgement para. 303. 27 Prosecutor v. Serushago, Sentence, ICTR-98-39-S, 5 February 1999, paras. 31–33 & 39; Prosecutor v. Kambanda, Judgement and Sentence, ICTR-97-23-S, Part C, 4 September 1998, paras. 39 & 48; Andrew N. Keller, ‘Punishment for Violations of International Criminal Law: An analysis of sentencing at the ICTY and ICTR’ (2001) Indiana International and Comparative Law Review 53, 61–62; Paul J. Magnarella, ‘Some Milestones and Achievements at the International Criminal tribunal for Rwanda: The 1998 Kambanda and Akayesu cases’ (1997) Florida Journal of International Law 517, 527. 28 Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 141.

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prosecution.29 It is worth mentioning that witness support is not being provided for in the ICTR assessed share of the UN budget, it is instead sourced from a voluntary fund.30 Payments made to witnesses may affect the credibility of the witness testimony, as stipends may seem as an inducement for a witness to testify. For instance the Tribunal provides stipends of US $22 per day for daily allowances. According to Nancy Combs, it may not seem like a windfall but for a population with per capita income of US $250 per year it is good money indeed.31 The Judges have recognised that such payments may affect the witness credibility in Karemera it was ruled that payments made by the Prosecution to a witness are relevant and probative for assessing that witness’s credibility because material or information within the Prosecutor’s knowledge concerning any benefits paid to and/or promises made to witnesses and victims beyond that which is reasonably required may affect the credibility of witnesses.32 Importantly, the Judges have the discretion to request disclosure in Karemera; the Chamber stated that the Prosecution was not required to disclose the exact amount of the benefits paid to a certain witness G because the nature of the benefits had already been disclosed. And it was satisfied by the Prosecution’s assertions that the benefits corresponded to the amounts set by the host 29

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Prosecutor v. Karemera, Decision on Joseph Nzirorera’s Motion for Disclosure of Benefits to Prosecution Witness ZF (rule 54 of the Rules of Procedure and Evidence), ICTR-98-44-T 21 October 2009 para. 5. See Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 60–61; Katrina Gustafson and Nicole Janisiewicz, ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2008) Journal of International Criminal Justice 1091, 1112; Nancy Amoury Combs, ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’ (2002) University of Pennsylvania Law Review 1, 93; see also Bizimungu et al., Decision on Prosper Mugiraneza’s Emergency Motion to Vary Witness List, ICTR-99-50-T, 12 June 2008, paras. 7–12. Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 138 and 140. Prosecutor v. Karemera et al., Decision on Defence Motion for Full Disclosure of Payments to Witnesses and to Exclude Testimony from Paid Witnesses (TC), 23 August 2005, para. 7 (hereinafter Karemera Decision on Defence Motion for full Disclosure of Payments to Witnesses); Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion for Reconsideration of Oral Decision on Motion to Compel the Benefit of Witnesses G and T and Motion for Admission of Exhibit: Payments Made for the Benefit of Witness G, Rules 89(C) and 54 of the Rules of Procedure and Evidence ICTR-98-44-T, 29 May 2008 para. 8; Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion to Dismiss for Abuse of Process: Payments to Prosecution Witnesses and “Requete de Mathieu Ngirumpatse en Retrait de L’Acte D’Accusation”, ICTR-98-44-T 27 October 2008.

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countries, and that they were reasonably required for the proper management of these witnesses.33 However, in the Bizimungu decision, the Judges reached a more expansive interpretation of Rule 68 dealing with disclosure, and ordered the Prosecution to disclose the sum total and details of all payments made to G (Witness D in that case), and to disclose future payments to that witness, if any, on an ongoing basis.34 Also, the Judges found that payments made towards the maintenance of a certain witness T family might have an effect on his credibility.35 However they could not make a definitive ruling on whether full disclosure of payments made to T is warranted because it must still review the details of all direct and indirect payments for that witness. The Chamber recalled that not all monies paid to a witness will fall within, the category of material of an exculpatory nature, or material that may affect the credibility of prosecution evidence. The management of witnesses and victims necessarily implies expenditure including, but not limited to, costs for transportation connected with the investigation and/or hearings. Accordingly, the Chamber ordered the Prosecution to file an ex parte disclosure of the sum total and details of all payments made to T so that it can evaluate for itself whether they include the type that may have had an effect on his credibility.36 Karemera decision is a good one as it is important for the Judges to evaluate whether stipends provided to witnesses may have induced them to testify or fabricate testimony in order to become a witness.37 3.1.4 Cooperation The obligation of States to cooperate with the Court finds its basis in Article 28, which derives its authority from Resolution 955. Articles 18 and 28 oblige States to ensure witness appearance, including the duty to ensure the proper service of documents for witnesses to appear before the Tribunal.38 Over the years, the relationship between Rwanda and the Tribunal has fluctuated.39 33 Ibid., para. 12. 34 Ibid., para. 13; see Bizimungu et al., Decision on Prosper Mugiraneza’s Motion for Records of all Payments Made Directly or Indirectly to Witness D (TC), 18 February 2008, para. 8 (hereinafter Bizimungu Motion for Records of all Payments). 35 Ibid., para. 15. 36 Ibid., para. 16. 37 See Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Founda­ tions of International Criminal Convictions (Cambridge University Press 2010) p. 140. 38 Bagosora Subpoena Decision, para. 8. 39 Erik Mose, ‘Main Achievements of the ICTR’ (2005) Journal of International Criminal Justice 920, 939; Jared Paul Marx, ‘Intimidation of Defense Witnesses at the International Criminal Tribunals: Commentary and Suggested Legal Remedies’ (2007) Chicago Journal

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The government controls access to witnesses and has, at times, denied access to ICTR investigative teams.40 This resulted to the ICTR President seeking the help of the UNSC, consequently the UNSC issued Resolution 1431, recalling Resolution 955.41 It recalled the mandatory obligation of all States, including Rwanda, to cooperate fully with the ICTR and stressed the duties of States to comply with requests to make available witnesses to the Tribunal and to assist the ICTR with on-going investigations. Since then, there has been a steady flow of witnesses from Rwanda and cooperation has improved.42 There has also been a considerable amount of success of State cooperation particularly with regards the location of witnesses. The Tribunal has maintained positive relationships with literally dozens of countries where witnesses may be found. Some States have issued special travel documents to enable witnesses to appear before the Tribunal and return safely to their place of residence.43 Countries such as Australia, Austria, Belgium, Norway, Sweden, Trinidad and of International Law 675; Pernille Ironside, ‘Rwandan Gacaca: Seeking Alternative means to Justice, Peace and Reconciliation’ (2002) New York International Law Review 31, 35. 40 Megan M. Carpenter, ‘Bare Justice: A Feminist Theory of Justice and its Potential Application to Crimes of Sexual Violence in post-genocide Rwanda’ (2008) Creighton Law Review 595, 640–641; Stephanie K. Wood, ‘A Woman Scorned for ‘Least Condemned’ War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda’ (2004) Columbia Journal of Gender and Law 274, 307–308; Christina M. Carroll, ‘An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National Justice System in dealing with Mass Atrocities 1994’ (2000) Boston University International Law Journal 163, 183; Jean-Marie Kamatali, ‘From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans’ (2005) New England Journal of International and Comparative Law 89, 94; Jacob Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and prospects’ (2002) Yale Journal of International Law 111, 135; William A. Schabas, ‘International Decision: Barayagwiza v. Prosecutor’ (2000) American Journal of International Law 563; Human Rights Watch & Fédération Internationale Des Ligues Des Droits De L’Homme, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath 1 (1996) available at www.hrw.org/reports/1996/Rwanda.htm (last visited February 2010); Vanessa Thalmann, ‘French Justice’s Endeavours to Substitute for the ICTR’ (2008) Journal of International Criminal Justice 995, 1002. 41 See UNSC Res.1431, U.N.Doc S/RES/1431 (2002) 14 August 2002; Daryl A. Mundis, ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2003) Journal of International Criminal Justice 520, 553–554. 42 Erik Mose, ‘Main Achievements of the ICTR’ (2005) Journal of International Criminal Justice 920, 939–940. 43 See ICC sixth session ICC-ASP/6/INF.2, p. 42 para. 6; Third Annual Report UN Doc.A/53/ 429-S/1998/857 (1998) pp. 146–147; ICTR Annual Report UN Doc.A/55/435-S/2000/927, 2000, paras. 80 & 145–146.

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Tobago, and the United States have adopted domestic laws to facilitate their cooperation with the ICTR.44 According to Sluiter the Tribunal actively seeks State cooperation, e.g. in the relocation of witnesses, but generally refrains from imposing obligations on States pursuant to Article 28. He observes that this is best illustrated by the efforts to obtain the attendance of refugee witnesses and witnesses requesting safe conduct measures (temporary immunity from prosecution).45 In Nyiramasuhuko for instance, the Judges held that the Tribunal was only mandated to solicit the cooperation of States under Article 28 and the UN High Commissioner for Refugees (UNHCR) in the implementation of protective measures for witnesses and that it was not empowered to order the UNHCR or any State to grant refugee status to a witness.46 The Registrar is to seek the cooperation of States and UNHCR in facilitating the testimony of witnesses subject to the following limitation that it ought not to interfere with the sovereign prerogative of States to control the sojourn of aliens in their territories or encourage individuals to commit illegal acts, such as prolonging their stay in the territory of a State where their presence is unlawful, nor can the Tribunal protect people against the lawful consequence of illegal acts.47 The Judges also have no power or authority to compel States to prevent them from expelling witnesses from their territory.48 Furthermore, the Appeals Chamber in Simba acknowledged that there could be situations where a fair trial is not possible because witnesses crucial to the defence case refuse to testify due to State interference. The defence must demonstrate that such interference has 44

45 46

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Susan W. Tiefenbrun, ‘The Paradox of International Adjudication: Developments in the International Criminal Tribunals for Former Yugoslavia and Rwanda, The World Court and the International Criminal Court’ (2000) North Carolina Journal of International Law and Commercial Regulation 551, 584–585. Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 970. Prosecutor v. Nyiramasuhuko, Extremely Urgent Motion by the Defence for Orders for Protective Measures for Defence Witnesses and their Families, ICTR-97-21-I, 19 January 1998; Nyiramasuhuko, ICTR, 97-21-I, 13 March 1998, para. 20. Prosecutor v. Ntagerura, Decision on the Defence Motion for Additional Protective Measures for Defence Witnesses, ICTR-96-10-I, 4 February 2000, para. 16, (hereinafter, Ntagerura Decision on Protective Measures); Prosecutor v. Bagambiki et al., Decision on the Motion of E. Bagambiki’s Defence seeking Orders for Protective Measures for its Witnesses, ICTR-99-46-I, 7 September 2010, paras. 8 & 12(a); Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) p. 64. Ibid., paras. 2–3.

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in fact taken place and to exhaust all available measures to secure the taking of the witness testimony.49 The Judges have held however that “non-cooperation, or active obstruction by States could adversely affect the fairness of a trial. Threats or intimidation of confirmed or prospective witnesses by State officials would, if proven, be a serious violation of the duty of cooperation.”50 Finally, in dealing with requests for protective measures related to witnesses in the territory of States, including the host State, the Tribunal has often directed the Registrar to seek the cooperation and judicial assistance of these States and international organisations, and has required the Registrar to report back on the implementation of requests for cooperation.51 3.1.5 Proofing and Familiarisation Witness proofing is a feature of the ICTR, in Karemera the Judges ruled it was satisfied that a practice of preparing witnesses before they testify has developed and has been sanctioned by both Ad hoc Tribunals.52 The Appeals Chamber confirmed that there would be no change in the law by upholding the Trial Chamber decision to deny a defence request to prohibit the prosecution from preparing its witnesses prior to their testimony.53 The Chamber noted that the Tribunal’s Statute and Rules do not directly address the issue of witness proofing. In the absence of express provisions, Rule 89(B) generally confers discretion on the Trial Chamber to apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. It is therefore evident from the jurisprudence of the Ad hoc Tribunals that, as Trial Chambers have 49

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Prosecutor v. Simba, Appeals Judgement, ICTR-01-76-A, 27 November 2007, para. 41 (hereinafter, Simba Appeals Judgment); Prosecutor v. Simba, Judgment and Sentence, ICTR-01-76, 13 December 2005, para. 46 (hereinafter, Simba judgement and sentence). Prosecutor v. Bagosora et al., Decision on Motion Concerning Alleged Witness Intimidation, ICTR-98-41-T, 28 December 2004, para. 7 (hereinafter, Bagosora Decision Concerning Alleged Witness Intimidation). Prosecutor v. Bagilishema, Request for Cooperation pursuant to Article 28 of the Statute, ICTR-95-1A-I, 16 Feb. 2000. Prosecutor v. Karemera et al., Decision on Defence Motions to Prohibit Witness Proofing, Rule 73 of the Rules of Procedure and Evidence, ICTR-98-44-AR73.8, 15 December 2006, para. 15 (hereinafter, Karemera Proofing Decision); See William A. Schabas, ‘International Criminal Tribunals: A Review of 2007’ (2008) Northwestern University Journal of International Human Rights 1, 42. Karemera, Decision on Interlocutory Appeal Regarding Witness Proofing, ICTR-9844-AR73.8, 11 May 2007, paras. 8–9 (hereinafter, Karemera Appeal Proofing Decision).

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exercised this discretion, a practice of witness proofing has developed and has been accepted in various cases.54 The Judges have ensured that the practice of witness preparation should not be done with the purpose of coaching the witness prior to testimony on stand. Provided that it does not amount to the manipulation of a witness’ evidence, this practice may encompass: preparing and familiarizing a witness with the proceedings before the Tribunal; comparing prior statements made by a witness; detecting differences and inconsistencies in recollection of the witness; allowing a witness to refresh his/her memory in respect of the evidence he/she will give; and inquiring and disclosing to the Defence additional information or evidence of incriminatory or exculpatory nature in sufficient time prior to the witness’ testimony.55 The Gacumbitsi Appeals Chamber ruled that it is not inappropriate per se for 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.56 There are several ways for parties to address the possibility that witness preparation might have improperly influenced testimony. For example, through careful cross-examination, a party can explore the impact of preparation on the witness’s testimony and use this to call into question the witness’s credibility. Intentionally seeking to interfere with a witness’s testimony is prohibited, and if evidence of this comes to light, a Trial Chamber can take appropriate action by initiating contempt proceedings under Rule 77 and by excluding the evidence pursuant to Rule 95.57 Also, the disclosure of new material to the defence as a result of a proofing session does not mean that the Judges would allow the new evidence to be led or that it would ultimately credit the testimony in its final assessment of the case.58 3.1.6 Witness Protection A particular element at the ICTR is that both the prosecution and defence appear equally in need of protective measures for their respective witnesses.59 54 Ibid. 55 Karemera Proofing Decision, para. 15. 56 Prosecutor v. Gacumbitsi, Appeal Judgement, ICTR-2001-64-A, 7 July 2006, paras. 73–74 (hereinafter, Gacumbitsi Appeal Judgement). 57 Karemera Appeal Proofing Decision, para. 13. 58 Ibid., para. 12. 59 Prosecutor v. Kajelijeli, Decision on Juvenal Kajelijeli’s Motion for Protective Measures for Defense Witnesses ICTR-98-44A-T, 3 April 2001, para. 11 (hereinafter, Kajelijeli’s Decision for Protective Measures); Bagosora Decision Concerning Alleged Witness Intimidation para 11; Proseutor v. Muvunyi, Decision on the Prosecutor’s Motion for Orders for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment,

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This is as a result of the fact that the desire for vengeance created an unsafe environment for both witnesses.60 This situation could give rise to a justified and real fear that disclosure of their participation in the proceedings of the Court would threaten their safety and security. This volatile security situation has existed through the entire period in which the ICTR has been operative.61

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ICTR-2000-55-1, 25 April 2000 (Muvunyi et al., Decision for Orders for Protective Measures); Prosecutor v. Niyitega, Decision on the Prosecutor’s Motion for Protective Measures for Witnesses, ICTR-96-14-I, 12 July 2000; Bagosora, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, ICTR-96-7-1, 31 October 1997, P i (b); Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 307; Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 969; Stephen Rapp, ‘Achieving Accountability for the Greatest Crimes—The Legacy of the International Tribunals’ (2007) Drake Law Review 259, 276 fn. 64. Ibid, para. 3; Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 64–66; Erik Mose, ‘The ICTR’s Completion StrategyChallenges and Possible Solutions’ (2008) Journal of International Criminal Justice 667, 678; Second Annual Report of the ICTR, UN Doc.A/52/582 and S/1997/868, 2 December 1997, para. 51; Cristian Defrancia, ‘Due Process in International Criminal Courts: Why Procedure Matters’ (2001) Virginia Law Review 1381, 1422; Adama Dieng, ‘Other Preparations for the Establishment of the Court: International Criminal Justice: From Paper to Practice, A Contribution from the International Criminal Tribunal for Rwanda to the Establishment of the International Criminal Court’ (2002) Fordham International Law Journal 688, 701 & 703; UN High Commissioner for Human Rights Field Operation in Rwanda, Killings and Other Attacks Against Genocide Survivors and Persons Associated With Them From January Through December 1996, Status Report as at 24 January 1997, UN Doc.HRFOR/ STRPT/33/24 Jan.1997/E. Ibid., paras. 16 & 18; Prosecutor v. Simba, Decision on Defence Request for Protection of Witnesses, ICTR-01-76-I, 25 August 2004, para. 6 (hereinafter, Simba Decision on Defence Request for Protection); Prosecutor v. Gatete, Decision on Prosecution request for Protection of witnesses, ICTR-2000-61-I, 11 February 2004 (hereinafter, Gatete Decision on Protection of witnesses); Prosecutor v. Nyiramasuhuko et al., Decision on Arsène Shalom Ntahobali’s Motion for Protective Measures for Defence Witnesses, ICTR-9721-T, 3 April 2001, para. 11 (hereinafter, Nyiramasuhuko et al., Ntahobali’s Motion for Protective Measures); Prosecutor v. Renzaho, Decision for Prosecutor’s Motion for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment, ICTR-97-31-I, 17 August 2005, para. 9; Prosecutor v. Nyiramasuhuko et al., Decision on Pauline Nyiramasuhuko’s Motion for Judicial Notice of an Appeal’s Chamber Factual Finding ICTR-97–21-T, 22 January 2009, para. 13; Bagosora Decision Concerning Alleged Witness Intimidation, paras. 7–9; Daryl A. Mundis, ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2003) Journal of International Criminal Justice 197; Stephen J. Rapp, ‘Achieving Accountability for the Greatest Crimes—The Legacy of the

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Pursuant to Article 21(4) the Tribunal provides in its Rules for the protection of witnesses, namely Rules 69 and 75.62 The Tribunal has issued numerous decisions or orders dealing with general and specific protective measures.63 These measures may include the nondisclosure to the public or publication in the media, including the internet, the designation of pseudonyms, the scaling at the Registry of any information on witnesses, the expunging of names from Tribunal records, closed sessions, the prohibition to photograph, audio or video record or sketch any witness at any time or place without leave of the trial Chamber.64 Also, in the courtroom, the Judges endeavour to ensure the necessary balance between crossexaminations required to test the evidence of witnesses and the need to International Tribunals’, (2007) Drake Law Review 259, 277; Beth Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’, (2009) American University Journal of Gender, Social Policy and the Law 361, 401. 62 See Prosecutor v. Rutaganda, Decision on Protective Measures for Defence Witnesses ICTR-96-3-T, 13 July 1998, para. 9 (hereinafter, Rutaganda Decision on Protective Measures). 63 Prosecutor v. Rwamakuba, Decision on the Prosecutor’s Motion for Protective Measures for Witnesses, ICTR-98-44-T, 22 September 2000; Prosecutor v. Kamuhanda, Decision of J. Kamuhanda’s Motion for Protective Measures for Defence Witnesses, ICTR-99-54-T, 22 May 2001; Megan M. Carpenter, ‘Bare Justice: A Feminist Theory of Justice and its potential Application to Crimes of Sexual Violence in post-genocide Rwanda’ (2008) Creighton Law Review 595, 660; Stephanie K. Wood, ‘A Woman Scorned for the ‘Least condemned’ War Crime: Precedent and Problems with Prosecuting Rape as a Serious war crime in the International Criminal Tribunal for Rwanda’ (2004) Columbia Journal of Gender and Law 274, 324; Göran Sluiter, ‘The ICTR and the Protection of Witnesses’, (2005) Journal of International Criminal Justice, 962, 968–969. 64 See Rules 69, 75(A)–(B) & 96; Prosecutor v. Nyiramasuhuko et al., Ntahobali, Decision on the Prosecutor’s Motion for Protective Measures for Victims and Witnesses, ICTR97-21-T, 27 March 2001; Akayesu judgement para. 12; Prosecutor v. Karemera, Decision on Reconsideration of Admission of Written Statements in Lieu of Oral Testimony and Admission of the Testimony of Prosecution Witness Gay P1, ICTR 98-44-T, 28 September 2007; Gatete Decision on Protection of witnesses, para. 2; Prosecutor v. Musema, Appeals Judgment, ICTR-96-13-A, 16 November 2001, para. 64, 68 & 71 (hereinafter, Musema Appeals Judgment); Prosecutor v. Nahimana et al., Decision on An Oral Application by Defence Counsel Concerning Witness X, ICTR-99-52-T, 19 January 2002, paras. 6–7; Kajelijeli Decision for Protective Measures, para. 20; Prosecutor v. Rutaganda, Decision on the Preliminary Motion submitted by the Prosecutor for Protective Measures for Witnesses, ICTR-96-3-T, 26 September 1996 (hereinafter, Rutaganda Decision on Motion for Protective Measures); Prosecutor v. Bagosora, Decision on the Defence Motion for Inadmissibility of Disclosure Based on the Decision of 11 June 1998, Judge Khan’s Separate Declaration, ICTR-96-7-T, 7 December 1998.

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protect them against harassment.65 The Niyitegeka Appeals Chamber held that orders for protective measures apply to all persons coming into possession of protected information.66 The legal framework for protection envisages a balance between the rights of the accused and the physical and psychological wellbeing of the witnesses.67 Furthermore, regarding the scope of safe conduct certificates for witnesses, the intended immunity is narrowly confined to crimes falling within the jurisdiction of the Tribunal and does not protect the witness from arrest for any acts or convictions prior to their departure from their home country.68 There has been some criticism of the Tribunal’s position on temporary immunity from criminal prosecution for witnesses. For example, in Kayishema the defence asserted that ‘most of the defence witnesses are Hutu by ethnicity and are unwilling to testify openly in favour of the accused owing to the fear of being implicated in the genocide.69 The fear of prosecution was considered by 65

Erik Mose, ‘Main Achievements of the ICTR’ (2005) Journal of International Criminal Justice 920, 937. 66 Prosecutor v. Niyitegeka, Decision on Motion for Clarification, ICTR-96-14-R75, 20 June 2008, para. 11 (hereinafter, Niyitegeka Appeals Clarification Decision). 67 Kanyabashi Defence Interlocutory Appeal, para. 6; Prosecutor v. Nyiramasuhuko, Decision on the Prosecutor’s Motion for Joinder of Trials, ICTR-97-21-I, 5 October 1999, para. 16; Prosecutor v. Nsengeyumva, Decision on Protective Measures for Defence Witnesses and their Families and Relatives, ICTR-96-12-I, 5 November 1997, para. 29 (hereinafter Nsengeyumva Decision on Protective Measures); Prosecutor v. Kanyabashi, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, ICTR96-15-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah 3 June 1999, para. 1 (hereinafter, Kanyabashi Defence Interlocutory Appeal); Article 13 ICTR Ethics Code Annex (1) ; Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 315–316; Göran Sluiter, ‘The ICTR and the Protection of witnesses’ (2005) Journal of International Criminal Justice 962, 969; Adama Dieng, ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403–422, 411. 68 Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion for Reconsideration of Certificate of Safe Conduct, ICTR-98-44-T, 24 March 2009, para. 8. 69 Prosecutor v. Kayishema et al., Decision on the Motion for the Protection of Defence Witnesses, ICTR-95-1-T, 6 October 1997, paras. 2–3; Prosecutor v. Barayagwiza, Appeals Decision, ICTR-97-19-AR72, 3 November 1999, para. 40 (hereinafter, Barayagwiza Appeals Decision); Prosecutor v. Kayishema, Brief of Human Rights Watch as Amicus Curiae in opposition to Rule 11 bis transfer, ICTR-2001-67-I, 3 January 2008, paras. 15 & 36; Kajelijeli’s Decision for Protective Measures, para. 16; Simba Judgment and Sentence, paras. 41 & 48; Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 974–975; Ari S. Bassin, ‘Dead Men Tell no Tales’: Rule 92bis—How

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the Judges in the framework of ‘protective measures’, as set out in Rule 75. The Judges ultimately refused to issue any safe conduct order on the ground that ‘protective measures should not extend to providing immunity from criminal prosecution by any appropriate authority’.70 Sluiter suggests that not only could the ICTR have adopted the position of the ICTY in Tadic by ordering safe conduct measures. But it could also, on the basis of the sweeping powers attributed to it in the area of State cooperation, order certain States, such as transit States, to respect the immunity, as is necessary for obtaining the witness’ appearance.71 The Judges have however considered whether fear of criminal prosecution is a fear from which witnesses should be protected pursuant to Rule 69.72 They held that protective measures should not hinder due process or be used as a means to provide immunity to the witness against possible prosecution that such measures should not extend to providing immunity from criminal prosecution by an appropriate authority in addition it does not have the jurisdiction to order a stay of the extradition of the potential witness.73 Finally, in accordance with Rule 34, the WVSS under the responsibility of the Registrar arranges for the appearance of both prosecution and defence witnesses, ensuring that they receive relevant support, including physical and psychological rehabilitation, especially counselling in cases of rape and sexual assault.74 A number of relationship agreements with States have the Ad Hoc International Criminal Tribunals Unnecessarily Silence the Dead’ (2006) New York University Law Review 1766, 1788; Jared Paul Marx, ‘Intimidation of Defense Witnesses at the International Criminal Tribunals: Commentary and Suggested Legal Remedies’ (2007) Chicago Journal of International Law 675, 675. 70 Ibid., para 5; Prosecutor v. Bagambiki, Decision on the Defence Motion for the Protection of Witnesses, ICTR-97-36-T, 1 October 1998, para. 3 (hereinafter, Bagambiki Decision on Protection of Witnesses). 71 Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 971; see Tadic Decision on Defence Motions to Summon and Protect Defence Witnesses, para. 12. 72 Prosecutor v. Bagosora, Decision on the Extremely Urgent Request Made by the Defence for Protection Measures for Mr. Bernard Ntuyahaga, ICTR-96-7-I, 13 September 1999, para. 35. 73 Ibid. 74 Akayesu Judgement, para. 31; ICTR, Witness Support and Protection at ICTR available at http://www.ictr.org/ENGLISH/geninfo/wvss.htm (last visited February 2010); JeanMarie Kamatali, ‘From the ICTR to ICC: Learning from the ICTR Experience in bringing justice to Rwandans’ (2005) New England Journal of International and Comparative Law 89, 92; See Adama Dieng, ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403–422, 411; Stephen J. Rapp, ‘Achieving Accountability for the Greatest Crimes—The Legacy of the International

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been made to relocate witnesses and their families who are unable to return to their residence as part of protective measures.75 3.2

Duties Αttached to Witnesses and the ICTR

3.2.1 Duty to Testify and Speak the Truth Witnesses have a duty to tell the truth when testifying in accordance to Rule 91(A). Rule 90(B) provides that every witness shall, before giving evidence, make the following solemn declaration: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.” A child, who, in the opinion of the Chamber, does not understand the nature of a solemn declaration, may be permitted to testify without that formality. If the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth. A judgement, however, cannot be based on such testimony alone.76 In addition pursuant to Rule 90(E) a witness may refuse to make any statement, which might tend to incriminate him. The Judges may, however, compel the witness to answer the question. Testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than perjury. Tribunals’ (2007) Drake Law Review 259, 277; Erik Mose, ‘Main Achievements of the ICTR’ (2005) Journal of International Criminal Justice 920, 937; See ICC sixth session ICC-ASP/6/ INF.2, p. 42 paras. 5 & 9; Major Marsha V. Mills, ‘War Crimes in the 21st Century’ (1999) Hofstra Law and Policy Symposium 47, 58; Report of the Office of Internal Oversight Services on the Audit and Investigation of the International Criminal Tribunal for Rwanda UN Doc. A/51/789, 6 February 1997, para. 54; Report of the Office of Internal Oversight Services on the follow-up to the 1997 audit and investigation of the International Criminal Tribunal for Rwanda, U.N. Doc. A/52/784, 6 February 1998, paras. 57–62; Yael Weitz, ‘Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement’ (2009) Cardozo Journal of Law & Gender 357, 370; Alex Obote-Odora, ‘Rape and Sexual Violence in International Law: ICTR Contribution’ (2005) New England Journal of International and Comparative Law 135, 158; Victor Peskin, ‘Courting Rwanda, The Promises and Pitfalls of the ICTR Outreach Programme’ (2005) Journal of International Criminal Justice 950, 952; Jane E. Stromseth, ‘Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?’(2007) Georgetown Journal of International Law 251, 279. 75 Megan M. Carpenter, ‘Bare Justice: A Feminist Theory of Justice and its Potential Application to Crimes of Sexual Violence in Pose-genocide Rwanda’ (2008) Creighton Law Review 595, 660. 76 Rule 90(C).

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The sections below shall discuss i) modes of testifying, ii) how the judges assess and weigh witness evidence; and iii) factors that impair accurate assessment of testimony. 3.2.1.1 Modes of Testifying In order to obtain all testimony and guarantee personal safety for witnesses the Tribunal has adopted several methods of obtaining witness testimony. This is discussed below. Importantly, pursuant to Rule 95 no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.77 3.2.1.1.1 Live-Testimony Pursuant to Rule 90(A) witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71. In Simba, the judges ruled that in exercising its discretion to admit witness testimony they shall be guided by the general principle, enshrined in Rule 90(A) that witnesses be heard directly by the Chambers.78 Thus, allowing the trial judges to directly assess the witness’s reliability.79 Also in Akayesu, it was held the general principle is that Trial Chambers shall hear live, direct testimony and prior statements of witnesses who appear in court as a rule relevant only in so far as they are necessary to a Trial Chamber in its assessment of the credibility of a witness.80 In dismissing an appellant’s argument that there was a rule for assessing evidence which ranked documentary evidence above oral evidence, the Simba Appeals Chamber decided that there is a general, though not absolute, preference for live-testimony the primary trier of fact. It is the Judges that have the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies. It is within the discretion of the Judges to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the fundamental features of the evidence. It may do this by relying on live testimony or documentary evidence.81 77 Rule 95. 78 Simba Appeals Judgement, para. 19. 79 Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 964. 80 Akayesu Appeal Judgement, paras. 134–135. 81 Simba Appeals Judgement, para. 103; see Helen Brady & Barbara Goy, ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2008) Journal of International Criminal Justice 569, 588.

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3.2.1.1.2 Video-Link The Appeals Chamber has recognised that there are well established, exceptions to the Tribunal’s preference for in-court testimony.82 In the interest of justice testimony by video-link may be ordered pursuant to Rules 54 and 71(D). In determining whether it is in the interests of justice to allow a prospective witness to testify via video-link, the Chamber will take into consideration the following factors: the importance of the testimony; the inability or unwillingness of the witness to travel to Arusha to testify and whether a good justification has been adduced for that inability and/or unwillingness. The burden of proof lies with the moving party.83 In Ndindiliyiama, it was ruled that a videolink testimony is an exceptional measure and is granted only upon sound and legitimate justification based on proper documentation.84 Video-link testimony secures the right of the witness to have his/her story heard in the genocide proceedings, it may assist the prompt delivery of evidence for witnesses living in remote locations and it entails substantial savings in terms of time and costs associated with the travel of witnesses.85 3.2.1.1.3 Written Statements/Transcripts Rule 92bis provides for proof of facts other than by oral evidence, paragraph (A) states that a Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.86 Following, written statements and transcripts may be used so as to establish the truth, they are admissible in so far as they are credible, reliable and determine the truth. Also, the Judges may decide on 82 83

Ibid., para. 20. Prosecutor v. Renzaho, Decision on Defence Request for Video-link Testimony, ICTR-9731-T, 27 June 2007, para. 2; Prosecutor v. Ndindiliyimana et al., Decision on the Prosecution Request for Witness Roméo Dallaire to give Testimony via Video-Link, ICTR-00-56-T, 15 September 2006, para. 13; Prosecutor v. Rukundo, Decision on the Defence Motions for Additional Time to Disclose Witnesses’ Identifying Information, To Vary its Witness List and for Video-Link Testimony, and on the Prosecution’s Motion for Sanctions, ICTR01-70-T, 11 September 2007, para. 23; Bagosora et al., Decision on Testimony of Witness Amadou Deme by Video-link, ICTR-98-41-T, 29 August 2006, para. 3. 84 Prosecutor v. Ndindiliyimana et al., Decision on Bizimungu’s Request for witness DE 4–12 to testify via Video-link, ICTR-00-56-T, 2 November 2007. 85 See Adama Dieng, ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403–422, 416. 86 Prosecutor v. Bagosora et al., Decision on Admission of Statements of Deceased Witnesses, ICTR-98-41-T, 19 January 2005, para. 17 (Hereinafter, Bagosora Decision on Admission of Deceased Statements).

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the admission of a witness statement before ruling on the admission of that witness as an expert-witness for instance.87 As a matter of law, statements of non-testifying individuals used during cross-examination may be admitted into evidence, even if they do not conform to the requirements of Rules 90(A) and 92bis provided the statements are necessary to the Judge’s assessment of the witness credibility and are not used to prove the truth of their contents.88 The presumption of innocence does not require the Prosecution to establish that its witnesses are credible. Witness in-court statements are presumed to be credible when made; the Judges have full discretion when subsequently determining the weight and credibility to be afforded to witness statements.89 With regards to the admissibility of statement of deceased witnesses, the Judges in Bagosora held that Rule 92bis(C) specifically addresses statements of deceased witnesses, providing that, where the Chamber is satisfied on the balance of probabilities, that a witness is dead or has disappeared, the formalities required by subsection (B) are replaced by the more general standard that the statement must have “satisfactory indicia of reliability”. The general requirements of relevance and probative value, applicable to all types of evidence under Rule 89(C), must also be satisfied.90 The Judges have also denied the admission of the statement of a recently deceased defence witness, on the ground that almost the whole statement went to the acts and conduct of the accused, and was therefore inadmissible under Rule 92bis.91 Furthermore, witness written statements ought to be disclosed by the Prosecutor, pursuant to Rule 66(A) (ii). The Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial.92 Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66(A) (ii). It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation 87 Prosecutor v. Muvunyi, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rules 92bis of the Rules, ICTR-2000-55A-T, 24 March 2005, para. 20; Prosecutor v. Rutaganda, Appeals Judgement, ICTR-96-3-A, 26 May 2003, para. 164. 88 Simba Appeals Judgement, para. 20. 89 Nahimana Appeals Judgment, paras. 193–194. 90 Bagosora Decision on Admission of Deceased Statements, para. 15. 91 Prosecutor v. Bagosora et al., Decision on Admission of Statement of Kabiligi Witness under Rule 89(C), ICTR-98-41-T, 14 February 2007, paras. 6–8. 92 Prosecutor v. Nyiramasuhuko et al., Decision on the Defence Motion for Disclosure of the Declarations of the Prosecutor’s Witnesses Detained in Rwanda And All Other Documents of Information Pertaining to the Judicial Proceedings in their Respect, ICTR97-21-T, 18 September 2001, para. 8.

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also follows from the fair trial guarantees stipulated in Articles 19 and 20. An accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness’s answer without juxtaposing it with the relevant question. This may also affect a Chamber’s assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness’s recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence.93 In Karemera it was found that Rule 66(B), permitting the inspection of material in the custody of the Prosecutor, ‘may apply to witness statements when these documents may improve the Defence’s assessment of the potential credibility of its witnesses before making a final selection of whom to call in their defence’. The Judges found that, the fairness of the trial would be enhanced, by avoiding undue delays should it be discovered by such inspection, that the witness lacks credibility and therefore should not be called as a Defence witness.94 Finally, questions posed with respect to preparatory meetings between the Prosecution and witnesses could relate to the witness’s credibility.95 3.2.1.2 Witness Credibility/Reliability This section examines various ways by which the Judges assess and weigh witness evidence and factors that may have impaired an accurate assessment of testimony. Before going into this it is again important to state that the case against an accused is almost solely based on witness testimonies. The credibility of these testimonies is essential to accurately assess the guilt or innocence of a defendant.96 Rule 89(C) gives the Trial Chamber discretion to admit any relevant evidence, which it deems to have probative value. Furthermore, pursuant to Rule 90(F) (i) the Judges exercise control over the mode and order of 93

Prosecutor v. Niyitegeka, Appeals Judgment, ICTR-96-14-A, 9 July 2004, paras. 33–35 (hereinafter Niyitegeka Appeals Judgment); Prosecutor v. Karemera et al., Decision on Disclosure of Witness Reconfirmation Statements, ICTR-98-44-PT, 23 February 2005, para. 6. 94 Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion for Inspection of Statements of Pierre Celestin Mbonankira-Rule 66(B) of the Rules of Procedure and Evidence, ICTR-98-44-T, 20 September 2007, para. 12. 95 Prosecutor v. Bizimungu et al., Decision on Bizimungu’s Urgent Motion Pursuant to Rule 73 to Deny the Prosecutor’s Objection Raised During the 3 March 2005 Hearing ICTR-0056-T, 1 April 2005, paras. 34–37. 96 Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 310.

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interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth. The Appeals Chamber in Kalimanzira has ruled that in assessing witness testimony, “it falls to the Judges to take the approach it considers most appropriate for the assessment of evidence.”97 Therefore, it is for the Judges to assess and weigh the evidence before it. It is for them in the circumstances of each individual case, to determine whether or not the evidence of the witness as a whole is relevant and credible.98 The Judges have a discretionary power to requests for verification of the authenticity of evidence obtained out of Court pursuant to Rule 89(D). It is a power, which they may exercise without any party being entitled to request them to use it.99 Furthermore, when weighing a defence allegation going to the credibility of the prosecution witnesses, the Judges are entitled to take into account the fact that the defence did not put such allegations to the witnesses for their reactions. Indeed, without the benefit of observing the witnesses’ reactions to such allegations, the Judges are not in a position to determine whether there was merit in the defence allegations.100 In Nshogoza, the Judges ordered the Registrar to provide them and defence with information regarding the frequency, duration and purpose of visits by the prosecution to a key prosecution witness held in the UN Detention Facility. They considered that the information might assist the defence in the preparation of its case.101 In light of the defence’s argument that such information could be relevant to the credibility of the witness, namely that such information could assist in determining the reasons for which the witness decided to dramatically change his story for the second time.102

97

Prosecutor v. Kalimanzira Appeals Judgement ICTR-05-88-A, 20 October 2010, para. 96 (hereinafter, Kalizimanzira Appeal Judgement). 98 Akayesu Appeal Judgement, paras. 134–135. 99 Prosecutor v. Nyiramasuhuko et al., Decision on Prosecutor’s Motion for Verification of the Authenticity of Evidence Obtained out of Court, Namely the Alleged Diary of Pauline Nyiramasuhuko (Rules 89(C) and 89(D)) ICTR-97-21-T, 1 October 2004, para. 28. 100 Prosecutor v. Kajelijeli, Appeals Judgement, ICTR-98-44A-A, 23 May 2005, para. 26. 101 Prosecutor v. Nshogoza, Decision on Defence Motion for Order to Registrar to Provide Information to the Defence Regarding Prosecution Visits to Witness GAA at UNDF, ICTR07-91-T, 28 April 2009, para. 16. 102 Ibid., para. 13.

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3.2.1.2.1 Cross-Examination The right to cross-examination is fundamental to the fairness of proceedings and applies to both the defence and the prosecution.103 Rule 90(G) (i) provides that cross-examination shall be limited to the subject-matter of the evidencein-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject matter of the case. Sub-paragraph (ii) provides that, in the crossexamination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. The Karera Appeals Chamber held that, Rule 90(G) (ii) did not support the Appellant’s argument that the ‘failure to crossexamine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter.’104 Rule 90(G) (ii) is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.105 It is within a Trial Chamber’s discretion to infer or not the truthfulness of statements unchallenged during cross-examination, and a Trial Chamber may take the absence of cross-examination into account when assessing a witness’s credibility.106 Thus, the Trial Chamber did not err in not considering as established those portions of testimony, which were not subjected to cross-examination.107 Also, if an agreement between witnesses for the purpose of untruthfully incriminating the Accused were established, their evidence would be excluded under Rule 95.108 In Bagilishema the judges recognized that each witness’s performance under cross-examination is a key factor in assessing the credibility of that witness.109 In Bizimungu the Prosecution sought to object to a Defence expert’s qualifications and report seven months after the deadline under Rule 94bis(B) by including the Prosecution’s objections in its response to a Defence motion 103 Prosecutor v. Bizimungu et al., Decision on Motion of Jeérôme-Cleément Bicamumpaka to Admit the Report of Expert Dr Bernard Lugan into Evidence Rules 73 and 94 bis of the Rules of Procedure and Evidence, ICTR-99-50-T, 21 February 2008, paras. 14–15 (Hereinafter, Bizimungu Decision to admit Expert Report). 104 Karera Appeal Judgement, paras. 22 & 24. 105 Ibid., para. 27. 106 Ibid., para. 29. 107 Ibid., paras. 22, 24 & 30. 108 Karera Appeal Judgement, para. 234. 109 Prosecutor v. Bagilishema Judgement and Sentence, ICTR-95-1A-T 7 June 2001, paras. 607–654.

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to admit the expert’s report without calling the expert to testify. The Judges then assessed whether the Prosecution’s failure to file a notice pursuant to Rule 94bis constituted tacit acceptance of the expert’s qualifications and report. Because the right of cross-examination is fundamental to the fairness of the proceedings, the Judges held that ‘actual acceptance’ is required before they may exercise discretion pursuant to Rule 94bis(C) to admit an expert’s report without cross-examination.110 Cross-examination at times clarifies that evidence which has been reported, i.e. through cross-examination it was discovered that an eyewitness account was in fact a second-hand account of what was witnessed.111 In Karemera, it was ruled that evidence of witnesses of rape must be submitted orally, because the allegations were “so pivotal to the Prosecution’s case that it would be unfair to the Accused to permit the evidence to be given in written form without an opportunity to cross-examine the witnesses”.112 The Tribunal’s jurisprudence also establishes that the evidence of accomplices and detained witnesses are not inadmissible, nor is it per se unreliable, especially where an accomplice is thoroughly cross-examined. However, considering that accomplice witnesses may have incentives to implicate the accused, a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered, and, when necessary, must approach such evidence with caution in order to ensure a fair trial and guard against the exercise of a possible underlying motive on the part of the witness. As a corollary, a Trial Chamber should at least briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused.113 In addition, it may be necessary, depending on the circumstances of the case, to employ a critical approach towards witnesses who are merely charged with crimes of a similar nature. But in most cases, they will not have the same tangible motives for giving false evidence like a witness who was allegedly involved in the same criminal acts as the accused. Therefore, as long as no special circumstances have 110 Bizimungu Decision to admit Expert Report, paras. 11–16; See Katrina Gustafson and Nicole Janisiewicz, ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2008) Journal of International Criminal Justice 1091, 1108. 111 Akayesu Judgement, para. 155. 112 Prosecutor v. Karemera et al., Decision on Prosecution Motion for Admission of Evidence of Rape and Sexual Assault Pursuant to Rule 92 bis of the Rules; and Order for Reduction of Prosecution Witness List ICTR 1998-44-T, 11 December 2006, para. 20. 113 Prosecutor v. Kalimanzira Judgement, ICTR-05-88-T, 22 June 2009, para. 72 (hereinafter, Kalimanzira Judgement).

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been identified, it is reasonable not to employ the same cautious approach towards the testimony of witnesses charged with similar crimes as to the testimony of accomplices in the ordinary sense of the word.114 Finally, the substantial differences between pre-trial statements and incourt testimonies of numerous witnesses reinforce the importance of allowing the defence adequate preparation time for cross-examination.115 In light of considerable doubts about the techniques employed by field investigators in gathering the pre-trial statements, the adversarial questioning of the witness through the cross-examination process is arguably a more direct way to expose the inconsistencies between pre-trial and trial statements. The cultural tendency for viewpoint inconsistency in relating events and for indirect answers to questions increases the potential for inaccuracies in pre-trial statements.116 According to Robinson, the questioning of witnesses at the ICTR is an art.117 To sort out credibility issues raised by the cultural practice in Rwanda, crossexamination is particularly important in ICTR trials.118 Stephen Rapp observes that in the multi-accused cases cross-examination can sometimes go on for days as attorneys for each defendant challenge the witness’s account. Some defence advocates are quite aggressive, asking the witness if he/she is a bribed agent of one of the survivors’ organizations, putting it to the witness that the testimony is a fabrication and that he/she has “come to Arusha to lie.” Many leave the witness stand shaken and angry.119 The Judges however created a rule that ensures witnesses are protected during cross-examination. Judge Mose observes the addition of Rule 90, which limits cross-examination to topics discussed during examination-in-chief, is a much needed improvement to limit

114 Ibid., para. 73. 115 Akayesu judgement, para. 137; Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 301; see Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010). 116 Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 309. 117 Peter Robinson, ‘So You Want to be an International Lawyer?: Getting and Defending a Case at the International Criminal Tribunal for Rwanda’ (2008) New England Journal of International and Comparative Law 277, 289 & 290. 118 Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 284. 119 Stephen J. Rapp, ‘Achieving Accountability for the Greatest Crimes—The Legacy of the International Tribunals’ (2007) Drake Law Review 259, 276–277.

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the scope of topics open to the defence and could also be used to reduce inquiries into any counselling the witness may have received.120 3.2.1.2.2 Prior Statements/Prior-inconsistent Statements Cross-examination is not the only mechanism used in evaluating witness credibility. Comparing pre-trial and trial statements is another means by which a court can assess the credibility of witness statements. The Judges have held that it may consider a variety of elements in assessing the credibility of witnesses, including contradictions between the witness’s testimony and any prior written statements; inconsistencies or implausibility’s within the testimony; and other features of the witness’s testimony.121 The Judges enjoy broad discretion in choosing which witness testimony to prefer, and in assessing the impact on witness credibility of inconsistencies within or between witnesses’ testimonies and prior statements.122 In Musema the Judges affirmed that prior-inconsistent statements are generally admissible in international criminal trials, as a means to impeach the credibility of a witness.123 The Rules do not expressly forbid the use of priorconsistent statements to bolster credibility. Prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony. The fact that a witness testifies in a manner consistent with an earlier statement does not establish that the witness was truthful on either occasion. After all, an unlikely or untrustworthy story is not made more likely or more, trustworthy, simply by repetition. Another reason supporting this position is that, if admissible and taken as probative, parties would invariably adduce numerous such statements in a manner that would be unnecessarily unwieldy to the trial. It was held in Ntakirutimanaet that there is a difference between using a prior consistent statement to bolster the indicia of credibility observed at trial and rejecting for instance a defence challenge to credibility based on alleged inconsistencies between testimony and earlier statements. The former is held to be a legal error, while the latter is simply a conclusion that the defence’s arguments are not persuasive.124 Any inconsis120 See ICTR News Letter, Newly Elected President Erik Mose Addresses Staff, Vol. I, No. 2, July 2003, p. 3, available at www.ictr.org/ENGLISH/newsletter/july03/july03.pdf (last visited February 2010). 121 Prosecutor v. Ndindabahizi, Judgement and Sentence, ICTR-2001-71-I, 15 July 2004, para. 22; Akayesu judgement, para. 137. 122 Kalimanzira Appeals Judgement, para. 105. 123 Prosecutor v. Musema, Judgement and Sentence, ICTR-96-13-A, 27 January 2000, para. 86. 124 Prosecutor v. Ntakirutimana et al., Appeals Judgement, ICTR-96-10-A and ICTR-96-17-A, 13 December 2004, paras. 147–148.

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tency of a witness statement with the standard set out by the ICTR may be taken into consideration when assessing the probative value of the statement, if necessary.125 The Judges have acquitted accused persons due to the unreliability of witnesses. In Rwamakuba, the credibility and reliability of the prosecution witnesses raised serious concerns. There were major inconsistencies between the witnesses’ testimonies and their prior statements and testimonies, the absence of any reliable identification of the accused at the time and location of the event. The lack of credibility and reliability of the prosecution witnesses and the defence alibi evidence, cumulatively contributed to levy reasonable doubt on the prosecution’s case.126 The Chamber assessed with particular caution the evidence given by certain defence witnesses due to their close relationship with Rwamakuba. These witnesses testified with great detail and answered questions on cross-examination in a steady demeanour. In addition, none of the other witnesses knew Rwamakuba personally, they did not appear to have any special interest in defending the Accused and their crossexamination by the Prosecution did not raise any convincing element to show that they were unbelievable or unreliable. In the Chamber’s view, their testimonies were consistent and objective enough to levy an additional doubt on the Prosecution’s case.127 Judge McGowan Davis writes, the defence strategy in this case, was to parse and parse and parse again. It was an extremely effective method, knocking down the prosecution’s case by a relentless attack on the credibility of prosecution witnesses. She argues that, it is impossible reading the judgement not to marvel at how skilfully the defence attorneys persuaded the judges that not one of the eighteen witnesses called by the prosecution testified reliably and accurately at trial. There were evident problems with many of their testimonies.128 Similarly, in Kajelijeli the defendant was acquitted of rape because two of the judges found that the key witness lacked credibility due to inconsistencies in her testimony at trial and prior statements to investigators.129 In a strong 125 Niyitegeka Appeals Judgment, para. 34. 126 Prosecutor v. Rwamakuba, Judgement, ICTR 98-44C-T, 20 September 2006, paras. 202 & 204 (hereinafter, Rwamakuba judgement). 127 Ibid., para. 200. 128 Mary McGowan Davis, ‘Fair Trial Rights: A Case Study at the ICTR’ (2008) New England Journal of International and Comparative Law 267, 271; see Peter Robinson ‘So you want to be an International Criminal Lawyer?: Getting and Defending a Case at the International Criminal tribunal for Rwanda’, (2008) New England Journal of International and Comparative Law 277, 286. 129 Prosecutor v. Kajelijeli Judgment & Sentence, ICTR 98-44A-T, 1 December 2003, paras. 917–925 (hereinafter, Kajelijeli judgement).

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dissent, Judge Arlette Ramaroson argued that the inconsistencies were not due to a lack of credibility but to an incompetent investigation. He proposed that a certain witness testimony should have been considered rather than her written statements given earlier to ICTR investigators. Especially in light of the fact that she was illiterate, incapable of estimating in meters, and the rape took place in a forest where visibility and hearing were difficult.130 In other cases before the Tribunal the Judges have considered factors such as the time lapsed, translation discrepancies, the manner in which the prior statements were taken or the impact of trauma inflicted upon the witnesses. For instance in Kalimanzira the Judges were of the view that, any inconsistencies within or between two witness statements were normal considering the passage of time. They also considered that these witnesses were uneducated, illiterate, and, as survivors, had undergone a great trauma. The Chamber thus found that the substantial elements on which their testimonies converge far outweigh the minor points on which they diverge and believed the witnesses.131 Also, the Akayesu judgment demonstrated a pragmatic approach to the assessment of witness reliability in the retrieval of traumatic events after the passage of a period of time, and showed a degree of realism in its tolerance and openness towards the witnesses. It stated that testimony is rarely exact as to the events experienced. To deduce from any resultant contradictions and inaccuracies that there was false testimony would be akin to criminalizing frailties in human perceptions. The Chamber understood what may, underlie the failure of witness memory during the retrieval stage, stating that it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony.132 Furthermore, Rule 68(A) provides for the Prosecutor to disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of prosecution evidence. In Bagilishema the meaning of “known” was considered by the Judges to determine whether the Prosecutor was obliged to disclose the confessions of three witnesses. The witnesses, who testified for the prosecution, had made prior confessions to the Rwandan authorities regarding their participation in the Rwandan genocide. The defence submitted that the Prosecutor was obliged to disclose the confessions in the interest of 130 Ibid.; see Dissenting Opinion of Judge Arlette Ramaroson, paras. 26–28 & 36. 131 Kalimanzira Judgement, para. 381. 132 Akayesu Judgement, paras. 140 & 142; see Mohamed Ali Lejmi ‘Prosecuting Cambodian Genocide Problems Caused by the Passage of Time since the Alleged Commission of Crimes’ (2006) Journal of International Criminal Justice 300, 303.

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ascertaining the truth and for evaluating the witnesses’ credibility. The Prosecutor’s principal argument was that the confessions were not in its possession and that it was the defence’s responsibility to conduct its own investigations. In its deliberations, the Judges noted that a literal interpretation of “known” would result in a requirement that the Prosecutor disclose all potentially exculpatory material held by a third party of which it has mere knowledge.133 Finally in determining witness credibility, the Judges have broad discretion to assess inconsistencies between a witness’s pre-trial statements and his evidence in court and to determine the appropriate weight to be attached to such discrepancies. It is for them to decide if an alleged inconsistency is sufficient to cast doubt on a witness’s evidence, and for them to accept such evidence, notwithstanding the discrepancies.134 3.2.1.2.3 Rebuttal/Rejoinder At the conclusion of the defence case, Rule 85(A) (iii) provides that the Prosecutor is entitled to call rebuttal witnesses, limited to those answering a particular point raised by the defence that was not logically part of the Prosecutor’s case-in-chief. Rule 85(A) (iv) provides that the defence is then entitled to call rejoinder witnesses to answer the rebuttal witnesses of the Prosecutor.135 With respect to challenges to the credibility of the Prosecution’s rebuttal witnesses, the Judges have approvingly cited five ‘generally recognized categories of exceptions’ under the common law when rejoinder evidence could be called to challenge the credibility of rebuttal witnesses: (i) to prove a charge of bias or partiality in favour of the opposite party; (ii) to prove that the witness has previously been convicted of a criminal offence; (iii) where the proper foundation has been laid, a previous inconsistent statement may be proved to contradict a witness; (iv) medical evidence to prove that by reason of a physical or mental condition, the witness is incapable of telling or unlikely to tell the truth; and (v) independent evidence that an adverse witness has a general reputation for untruthfulness and that the witness testifying 133 Prosecutor v. Bagilishema Decision on the Request of the Defence for an Order for Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z, and AA, ICTR95-1A-T, 8 June 2000, para. 6; Prosecutor v. Bizimungu et al., Decision on Jerome-Clement Bicamumpaka’s Motion for Judicial Notice of a Rwandan Judgement of 8 December 2000 and in the Alternative for an Order to Disclose Exculpatory Evidence, ICTR-99-50-T, 15 December 2004, paras. 22 & 26. 134 Kalimanzira Judgement, para. 76. 135 Prosecutor v. Semanza, Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Rebuttal Evidence, ICTR-97-20-T, 27 March 2002, para. 8.

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to such reputation would not believe the impugned witness under oath.136 In Semanza it was held that examination of anticipated testimonies reveals that none of the witnesses could qualify as a rejoinder witness. The witnesses were not concerned with any new issue raised by the Prosecution during rebuttal, which could not have been reasonably foreseen by the Defence. Although the common law permits certain challenges to credibility of rebuttal witnesses to be made in rejoinder, the Defence had not demonstrated that its witnesses fall within the confines of these exceptions. The facts raised by the defence to challenge the credibility of the rebuttal witnesses related only to collateral issues. Thus, the Chamber was of the view that it would serve no legitimate purpose to hear these proposed witnesses.137 3.2.1.2.4 Corroboration The Appeals Chamber has consistently held that a Trial Chamber is in the best position to evaluate the probative value of evidence and that it may, depending on its assessment, rely on a single witness’s testimony for proof of a material fact. Accordingly, the Chamber does not necessarily require evidence to be corroborated in order to make a finding of fact on it. Though a Trial Chamber may prefer that a witness’ testimony be corroborated, it is not a requirement or an obligation in the practice of this Tribunal.138 The Tribunal has also emphasised that witness credibility is of paramount importance when determining the merits of a case. Often, it is the aggregate effect of multiple statements contradicting or corroborating a witness that is determinative when assessing his/her credibility.139 In Muhimana, the Judges heard the testimonies of eight prosecution witnesses about the violent rapes of fifteen women. Each of the eight prosecution witnesses testified about a separate incident of rape, involving one to three victims.140 Their testimonies were not corroborated, the Chamber nonetheless found their testimony to be straightforward, credible, and unshaken under extensive cross-examination on the basis of a certain Witness AP’s evidence, the Chamber found the accused guilty.141 The Appeals 136 Prosecutor v. Semanza, Decision on Defence Motion for Leave to Call Rejoinder Witnesses, ICTR-97-20-T, 30 April 2002, para. 12 (hereinafter, Semanza defence motion for leave). 137 Ibid., para. 12. 138 Kalimanzira Judgement, para. 71. 139 Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion for Subpoena to Rule 92 bis Witnesses or for Reconsideration ICTR-98-44-T, 26 April 2010 para. 5. (Hereinafter, Karemera motion for subpoena rule 92bis witnesses) 140 Prosecutor v. Muhimana Judgment and Sentence, ICTR 95-18-T, 28 April 2005, paras. 29–32. 141 Ibid.

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Chamber also affirmed that, on the basis of Witness AP’s evidence, as accepted by the Trial Chamber, found accused guilty of aiding and abetting.142 It ruled that a conviction may be based on circumstantial evidence and that a Trial Chamber has the discretion to decide, in light of the circumstances of each case, whether corroboration of evidence is necessary.143 In Musema while the Chamber found the testimony of a certain Witness J to be generally credible it was deeply troubled by the unexplained inconsistency regarding the rape of her daughter. Without any reasonable explanation, the Chamber questioned the accuracy of the account. The Chamber believed that there was likely to be a reasonable explanation, based on its evaluation of the witness. However, recalling the high burden of proof on the Prosecutor and the lack of any other evidence produced to corroborate the account of Witness J, the Chamber could not find beyond a reasonable doubt that the allegations had been established relating to the rape and killing of one person by Musema and the rape and killing of others with her by his men and on his order in 1994.144 Finally, the Judges have held that lack of corroboration of accomplice testimony does not automatically render such testimony unreliable. The level of caution to be exercised in respect of an uncorroborated accomplice witness’ testimony is thus to be determined on a case-by-case basis.145 3.2.1.2.5 Alibi Alibi testimony has contributed in levying cumulatively reasonable doubt on the Prosecution case.146 A review by Combs of ICTR cases shows that more than 90 percent of them featured an alibi.147 Judge Davis comments provides for an understanding of the use of alibi testimony: ‘I have witnessed many trials in my own courtroom where the strongest piece of evidence against the accused was the “busted alibi” offered by the defense.’ She observes that the defence lawyers in Rwamakuba skilfully used the effective alibi testimony as a thread connecting the attacks on all the prosecution witnesses. The implicit question presented for the Chamber here was: if the prosecution could be so wrong 142 Prosecutor v. Muhimana Appeals Chamber Judgment, ICTR 95-1B-A, 21 May 2007, para. 52. 143 Ibid., paras. 49 & 50–51; Suzanne Chenault, ‘And Since Akayesu? The Development of ICTR Jurisprudence on Gender Crimes: A Comparison of Akayesu and Muhimana’ (2008) New England Journal of International and Comparative Law 221, 234–235. 144 Musema Appeals Judgement, paras. 844–845. 145 Kalimanzira Judgement, para. 74. 146 Rwamakuba Judgement, paras. 195–200. 147 Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 241.

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about such a simple thing as whether or not the defendant was even on the scene at the time the crimes were committed, what credibility does its witnesses have with respect to other, less critical, details? Without the compelling alibi evidence, it would have been harder for the chamber to conclude that all eighteen prosecution witnesses had lied or identified the wrong man, which seems statistically unlikely’.148 In Simba the Appeals Chamber endorsed the Trial Chambers legal standard on alibi evidence stating that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the prosecution case. The alibi does not carry a separate burden. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the prosecution. Indeed, it is incumbent on the prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.149 Rule 67(A) (ii) (a) requires the defence to notify the prosecution before the commencement of trial of its intent to enter a defence of alibi. The notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi. The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility. Therefore, it is within the Trial Chamber’s discretion to take this into account in assessing the alibi evidence in each case.150 3.2.1.2.6 Hearsay While direct evidence is preferred, hearsay evidence is not per se inadmissible at the ICTR. Judges have the discretion to treat such hearsay evidence with caution, depending on the circumstances of the case. In certain circumstances, hearsay may require other credible or reliable evidence adduced for instance by the Prosecution in order to support a finding of fact beyond reasonable doubt.151 A prosecutor is well-advised to press the witness before testimony is given to determine if the event was actually seen with the witness’s own eyes.152 In an argument made that the information received from an expert-witness was secondary hearsay collected more than five years after 148 Mary McGowan Davis, ‘Fair Trial Rights: A Case Study at the ICTR’ (2008) New England Journal of International and Comparative Law 267, 273. 149 Simba Appeals Judgment para. 184; Simba Judgement and Sentence para. 303. 150 Kalimanzira Judgement, para. 56. 151 Ibid., para. 75. 152 Akayesu judgement para. 155.

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the event, the Appeals Chamber in Nahimana held that, Trial chambers may admit and rely on hearsay testimony if they consider it to have probative value.153 The Judges have the discretion to cautiously consider hearsay evidence and have the discretion to rely on it. Thus the weight and probative value to be afforded to hearsay will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross-examined.154 Fabian argues that the approach used by the Prosecution in Akayesu in allowing victims to tell their own stories instead of permitting an “expert” to summarize the way witnesses felt was much more limited and appropriate. She suggests that the Chamber could assess both the credibility of the expert and each victim’s veracity as a witness that is a much better approach than requiring the Chamber to sift through layers of hearsay-evidence to winnow the credible from the incredible.155 3.2.1.3 Factors that Impair Accurate Assessment of Testimony The accuracy of judgments and the credibility of the Tribunal depend on the veracity of testimonies. The Tribunal has been criticised for significantly impeding the truth-gathering process by failing to develop rules of evidence that are internally consistent and customized to the Rwandan situation.156 According to Combs the deficiencies in testimony can be explained by the educational, cultural, linguistic factors and by witness mendacity. Indeed, many of the testimonial difficulties from the failure to answer questions of date, time and distance to the circuitous responses that so lengthen and complicate communication could also stem from a witness’s desire to evade.157 The Akayesu and Rutaganda judgments did briefly mention the problems of cultural, educational and linguistic issues impacting witness testimony.158 This has also 153 Nahimana Appeals Judgement, para. 831. 154 Kalimanzira Appeals Judgement, para. 96. 155 Kellye L. Fabian ‘Proof and Consequences: An Analysis of the Tadic & Akayesu Trials’ (2000) Depaul Law Review 981, 1029. 156 Joanna Pozen, ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 282. 157 Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 240; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 22. 158 Akayesu Judgement para. 137; Prosecutor v. Rutaganda Judgement and Sentence, ICTR96-3-T, 6 December 1999, para. 19 (hereinafter Rutaganda judgement); see also Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 190.

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been echoed in Kajelijeli were Judge Arlette Ramaroson proposed that inconsistent testimony was as a result of an incompetent investigation. She was of the view that a certain witness testimony should have been considered rather than her written statements given earlier to ICTR investigators, especially in light of the fact that she was illiterate and incapable of estimating in meters.159 Incompetent investigations were a major challenge for the Tribunal as at the early stages of the ICTR there was the lack of professional investigators. The employed staff did not have experience in investigatory work, thus they were learning as they worked.160 Language interpretation and mistranslation has also been a factor which may negatively impact the truth and fact finding role of the Tribunal. At the ICTR witness testimony must proceed through multiple translations. Proceedings before the ICTR are also typically conducted in either English or French or in Kinyarwanda and simultaneously translated into the other two languages.161 For instance in Akayesu witness interviews were mostly conducted in Kinyarwanda and the Chamber did not have access to transcripts of the interviews, but only translations thereof. It was therefore unable to consider the nature and form of the questions put to the witnesses, or the accuracy of interpretation at the time.162 The ICTR is said to have few interpreters who can translate directly from Kinyarwanda to English, so interpreters typically interpret from Kinyarwanda to French and then French to English. Each translation increases the likelihood of mistakes, and while it is not always easy to determine when interpretation problems are occurring, sometimes witness answers are so unresponsive that one must suspect inaccurate interpretation.163 In Kalimanzira a witness blamed his inconsistent statement on the stand with his prior statement on the grounds that his prior statement must have been misunderstood and poorly recorded.164 According to Combs, ICTR defence counsel sometimes catch mistranslations between English and French but 159 See Kajelijeli Judgment Dissenting Opinion of Judge Arlette Ramaroson, paras. 26–28 & 36; see also Kalimanzira Judgement, para. 381. 160 See ICC sixth-session ICC-ASP-6-INF-2 p. 42 para. 4. 161 Akayesu judgement, para. 20; Nancy Amoury Combs ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’ (2002) University of Pennsylvania Law Review 1, 63 & 101–102. 162 Ibid., para. 137; see also ICC sixth-session ICC-ASP/6/INF.2 p. 42, para. 5. 163 Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235, 254. 164 Kalimanzira Judgement para. 380.

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because no Rwandans are serving as ICTR prosecutors, defence counsel or Judges mistranslation of Kinyarwanda go unnoticed.165 Several decisions have noted the difficulty of receiving and interpreting testimony from witnesses whose culture and language is foreign to the Tribunal judges’ own.166 Joshua Karton writes that with respect to “incurable” type of alterations of testimony, the most important thing is for Judges always to remain actively aware of the effects of interpretation.167 This was recognised in Rwamakuba, were it was held that the Judges have undermined the credibility and reliability of witnesses as a result of translation discrepancies.168 The cultural divergences are said to also disrupt interpretation at the ICTR. Cultural understanding colour the interpretations of various words.169 In light of the above, if witness testimony is not being translated correctly or interpreters are inaccurate in their interpretation then the truth is not being told. Testimony is distorted and the Judges as fact finders and ascertainers of the truth are getting a wrongful account of the witness story. Understanding the ways in which interpretation can alter testimony will help to make Judges more sensitive to inconsistent testimony and more likely to think twice in the face of vague or ambiguous statements, rather than making snap judgments. This was recognised in Akayesu were it was ruled that there appeared to be contradictions between the testimony of several witnesses on the stand and earlier statements by these same witnesses given to Tribunal investigators.170 These inconsistencies, was in part as a result of the fact that the interpretation of oral testimony of witnesses from Kinyarwanda into one of the official languages of the Tribunal has been a particularly great challenge due to the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English. These difficulties, the Tribunal reasoned, affected the pre-trial interviews as well as 165 Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 73. 166 Ida L. Bostian, ‘Cultural Relativism in International War Crimes Prosecutions: The International Criminal Tribunal for Rwanda’ (2005) ILSA Journal of International and Comparative Law 1, 23. 167 See Joshua Karton, ‘Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony’ (2008) Vanderbilt Journal of Transnational Law 1. 168 Rwamakuba judgement, para. 202. 169 Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 74 & 78–79. 170 Akayesu Judgment, para. 140; see Erik Móse ‘The ICTR: Experiences and Challenges’ (2005) New England Journal of International and Comparative Law 1, 14.

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the interpretation of in-court testimony.171 The ICTR is also said to avoid identifying the ethnicity of witnesses who appear in the trials and focuses on the credibility of the testimony given.172 The fact of differing socio-cultural norms affects the prospects of making accurate assessments of witness statements.173 The need for cultural sensitization in relation to differing norms for the sake of accuracy cannot be underestimated. Without understanding the local culture, i.e. the specific norms regulating the transmission and dissemination of knowledge as well as culture-specific taboos and inhibitions, interrogators and international judges face a serious risk of making erroneous assessments of points of evidence.174 3.2.2 Duty to Obey Directions Witnesses are obliged to adhere to the directions of the Tribunal in Kajelijeli it was held the integrity of the proceedings before the ICTR, is protected by the Chamber by means of the orders that it issues. When a party violates such orders such conduct harms the integrity of the proceedings, thereby causing serious damage.175 The Judges have been given the authority to use compulsory process, possible in the form of a subpoena, to ensure the attendance of a witness.176 They also have the power to summon their own witnesses, although this power has rarely been used.177 The Judges have reiterated that 171 Ibid., para. 130 & 145; ICTR Eighth Annual Report U.N. Doc. A/58/140, 11 July, 2003 at 18; Erik Móse ‘The ICTR: Experiences and Challenges’ (2005) New England Journal of Inter­ national and Comparative Law 1, 11; Kingsley Chiedu Moghalu, ‘Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda’ (2002) Fletcher Forum of World Affairs 21, 34; Eric Husketh, ‘Pole Pole: Hastening Justice at UNICTR’ (2005) Northwestern University Journal of International Human Rights 20. 172 Timothy Gallimore, ‘The Legacy of the International Criminal Tribunal for Rwanda (ICTR) and its Contributions to Reconciliation in Rwanda’ (2008) New England Journal of International and Comparative Law 239, 257–258. 173 See Akayesu judgement, paras. 155–156. 174 Jessica Almqvist, ‘The Impact of Cultural Diversity on International Criminal Proceedings’ (2006) Journal of International Criminal Justice 745, 758; Ida L. Bostian ‘Cultural Relativism in International War Crimes Prosecutions: The International Criminal Tribunal for Rwanda’ (2005) ILSA Journal of International and Comparative Law 1, 25. 175 Prosecutor v. Kajelijeli, Decision on Kajelijeli’s Motion to Hold Members of the Office of the Prosecutor in Contempt of the Tribunal (Rule 77(C)), ICTR-98-44A-T, 15 November 2002, paras. 14–15 (hereinafter, Kajelijeli Motion to hold members of the OTP in Contempt). 176 Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Antwerp: Intersentia, 2002) pp. 253–268. 177 Peter Robinson, ‘So you want to Be An International Lawyer?: Getting and Defending A Case at the International Criminal Tribunal for Rwanda’, (2008) New England Journal of International and Comparative Law 277, 291.

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the Chamber’s authority to order the attendance of individuals to appear before it as witnesses is derived from the Statute.178 In Bagosora it was held that, the Trial Chamber has the power to issue a subpoena “an order commanding the attendance of a witness under the threat of penalty to the addressee for non-compliance” and that the issuance of a subpoena is necessary and appropriate to the conduct of the trial.179 Rule 98 provides that the Trial Chamber may itself summon witnesses and order their attendance. In Semanza the Chamber held that Rule 98 gives the Judges express authority to summon, but does not provide any further guidance as to the legal standard, scope or execution of such a summon, nor does it provide the requirements for a request to summon a witness.180 Furthermore, Rule 54 lays down the different mechanisms through which such testimony may be compelled. The rule permits the issuance of orders, summonses, subpoenas warrants and transfer order as may be necessary for the purpose of investigation, or for the preparation or conduct of the trial and encompasses the Chamber’s power to require a prospective witness to be present at a nominated place and time in order to be interviewed.181 In order for the Judges to grant a request for subpoena to interview the prospective witness, the requesting party must demonstrate that it has made reasonable attempts to obtain the voluntary cooperation of the witness. The witness testimony can materially assist its case and the witness testimony must be necessary and appropriate for the conduct and fairness of the trial.182 A witness whose prospective testimony is based on events he may have witnessed while serving as a UN staff member for instance may be treated differently than as member of his government operation in an official capacity. Consequently he may, be subpoenaed by the Tribunal provided that the UN has indicated that it has no objections to an interview between the witness and the Defence.183 178 Prosecutor v. Bagosora et al., Decision on Requests for Subpoenas, ICTR-98-41-T, 10 June 2004, para. 2 (hereinafter, Bagosora Subpoenas Request); Bagosora Subpoena Decision, para. 4. 179 Bagosora Subpoena Decision, paras. 7–8. 180 Prosecutor v. Semanza, Decision on Semanza’s Motion for Subpoenas, Depositions and Disclosure, ICTR-97-20-I, 20 October 2000, para. 18 (hereinafter Semanza motion for subpoenas). 181 Karemera motion for subpoena rule 92bis witnesses para. 8; Bagosora Subpoena Decision, para. 4. 182 Ibid; see Prosecutor v. Simba, Decision on the Defence Request for a Subpoena for Witness SHB, ICTR-01-76-T, 7 February 2005, para. 3 (hereinafter, Simba Subpoena Decision). 183 Bagosora Subpoena Decision, para. 5; see Akayesu, Decision on the Motion to Subpoena a Witness, ICTR-96-4-T, 19 November 1997; Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 965.

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The Judges have resorted to the provisions in Rule 54, for instance, when the information could be considered as material to the preparation of the Defence case or to determine the credibility of Prosecution witnesses.184 It is at their discretion to decide if it is proper and warranted under the particular instances to use its power to issue subpoenas”.185 In Karemera it was, decided that when a witness refuses to appear in court, his refusal needs to be real and well founded. The Chamber must have reasons to believe that if it does not authorize it, the witness won’t testify at all.186 A request is justified where the individuals for whom subpoenas are requested appear for instance on the Prosecution witness list; their sworn witness statements indicate that they have knowledge of events that are relevant to the trial. The test is for the prosecution to show that the individuals in question are refusing to come to the Tribunal to provide the evidence within their knowledge, despite the best efforts of the Prosecution and the Registry to accommodate their concerns. Under these circumstances, the issuance of subpoenas is necessary and appropriate for the conduct of the trial.187 Similarly, when the Defence is not fully aware of the nature and relevance of the testimony of a prospective witness it is in the interests of justice to allow the Defence to meet the witness and assess his testimony. Consistent jurisprudence has it that subpoenas should not be issued lightly. The Defence must first demonstrate that it has made reasonable attempts to obtain the voluntary cooperation of the parties involved and has been unsuccessful. Again, the Defence must have a reasonable belief that the prospective witness can materially assist in the preparation of its case.188 In Kamuhanda, it was held that the Prosecution had no power to compel Defence witnesses to speak to the Prosecution, save pursuant to a subpoena, and that they were subject to all professional obligations to ensure that a witness does not feel coerced or intimidated.189 When deciding whether the applicant has met the evidentiary 184 Kalimanzira Judgement, para. 46. 185 Bagosora Subpoena Decision, para. 23. 186 Prosecutor v. Karemera et al., Decision on Motion for Video-Link Testimony of Jean Baptiste Butera, ICTR-98-44-T, 19 March 2008, para. 3. 187 Bagosora Subpoenas Request, para. 4. 188 Simba Subpoena Decision, para. 3; Prosecutor v. Bagosora et al., Decision on Request for Authorization to the Kingdom of the Netherlands for Cooperation and Assistance, ICTR98-41-T, 7 February 2005, para. 5; Prosecutor v. Decision on Bagosora Defence’s Request for a Subpoena Regarding Mamadou Kane, 22 October 2004, para. 3; Karemera motion for subpoena rule 92bis witnesses para. 9. 189 Prosecutor v. Kamuhanda, Decision on Kamuhanda’s Motion for Disclosure of Witness Statements and Sanction of the Prosecutor”, ICTR-99-54A-T, 29 August 2002, paras. 14–15.

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threshold, the Chamber may also consider whether the information the applicant seeks to elicit through the use of subpoena is obtainable through other means. Additionally, citing the Appeals Chamber in the ICTY Halilović case a subpoena should be issued if it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness.190 The Judges held in Muvunyi that, where it is shown that the efforts to compel the witnesses’ attendance through the use of a subpoena might be counterproductive. As the witnesses in the case had clearly and consistently indicated their deep-seated security concerns about travelling to Arusha and where the Chamber is of the view that the testimony of the witnesses is sufficiently important to justify the use of video-conferencing facilities. Such measures will be in the interests of justice and the accused will be in a fair position to confront the witnesses.191 Finally, under Article 28 and Rule 54 the Judges must rely primarily on State cooperation and State judicial mechanisms to execute and enforce subpoenas short of referring a matter to the UNSC.192 In Bagosora, Belgium was requested to effectively service on the addressee of the subpoena and to provide any assistance that may be requested by the Registry to facilitate the attendance of the witness.193 3.3 Sanctions 3.3.1 Contempt Like the ICTY, Rule 77 governs and provides for sanctions for contempt of the Tribunal. Pursuant to Rule 77(A)(i)-(v) the Tribunal may hold in contempt those who knowingly and wilfully interfere with its administration of justice. The Tribunal can sanction witnesses who refuse to testify pursuant to Rule 77(A)(i) and one who refuse to comply with an order to attend before the Court pursuant to Rule 77(A)(iii). In accordance to paragraph G the maximum penalty for contempt shall be a term of imprisonment not exceeding five years or $10.000. Rule 77(A)(iv) provides that this includes any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes 190 Karemera motion for subpoena rule 92bis witnesses para. 9. 191 Prosecutor v. Muvunyi, Decision on Prosecutor’s Extremely Urgent Motion Pursuant to Trial Chamber II Directive of 23 May 2005 for Preliminary Measures to Facilitate the Use of Closed Video-Link Facilities, ICTR-2000-55A-T, 20 June 2005, paras. 16–17. 192 Bagosora Subpoena Decision, para. 23. 193 Ibid., para. 8.

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with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness. In addition, Rule 77(B) provides that any incitement or attempt to commit any of these acts is punishable as contempt of the Tribunal with the same penalties. Rule 77(D) provides that if the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C) (i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C) (ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself. After having appointed an, amicus curiae to present a report to the Chamber, and if the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment. In Ngirabatware in citing the ICTY Appeals Chamber the Judges held that the sufficient grounds standard under Rule 77(D) of the ICTY Rules only requires the Trial chamber to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed. The Judges ruled that ICTY Rule 77 is identical to ICTR Rule 77 and consider that, the same legal standard applies. That the prima facie standard is a relatively low burden that requires the Chamber to take the evidence adduced in support of the allegations as true. If there is evidence in support of each of the elements of the alleged crime, the prima facie standard has been satisfied and there are sufficient grounds to initiate proceedings. The credibility and reliability of witness testimony is only to be examined at the conclusion of a case. Nonetheless, even where the prima facie standard has been met, the Chamber retains discretion to determine whether to initiate proceedings for contempt. The Chamber is entitled to find a prima facie case of contempt and then determine, within the bounds of its discretion, whether to initiate proceedings.194 Hence, for contempt proceeding to be initiated there must be a prima facia proof of contempt. Nyiramasuhuko illustrates the legal and practical problems pertaining to contempt proceedings before the Tribunal. In this case, the Prosecutor alleged that members of the defence team approached prosecution witnesses and attempted to change their minds as far as testifying for the Prosecutor was concerned.195 The Chamber dismissed the prosecution’s 194 Prosecutor v. Ngirabatware, Decision on Allegations of Contempt, ICTR-99-54-T, 21 February 2013, paras. 6–8 (hereinafter Ngirabatware Decision on Allegations of Contempt). 195 Prosecutor v. Nyiramasuhuko et al., Decision on the Prosecutor’s Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor’s Counsel, ICTR-97-21-T, 10 July 2001, para. 2.

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request for investigations of alleged contempt. The main reason was that the prosecution failed to offer prima facie proof of contempt. The Chamber adopted the ICTY standard, according to which the Prosecutor is expected to formulate at an early stage the nature of the charge with the precision expected of an indictment.196 Finally, in Ngirabatware after a careful review of facts investigated by amicus curiae, the Judges had reason to believe that two individuals a defence legal assistant and another who acted as a focal point for gathering witnesses for the Ngirabatware defence team may be in contempt of the Tribunal for knowingly and willfully threatening intimidating and otherwise interfering with prosecution witnesses prior to them giving testimony and initiated contempt proceedings against them.197 3.3.2 False Testimony The Statute is silent on contempt for false testimony. However, bearing in mind that the accuracy of ICTR judgments and the credibility of the Tribunal depend on the veracity of witness testimonies,198 the Judges were bound to create rules providing for sanctions for false testimony. They have reiterated to the parties, to the witnesses and to others connected to proceedings before the ICTR, that the Tribunal will not tolerate occurrences of false testimony.199 Witnesses have a duty to tell the truth, Rule 91(A) provides that a Chamber, proprio motu or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so. The Appeals Chamber has held that the giving of false testimony before the Court, as well as the interference with the testimony of other witnesses who may appear before the Court, are unacceptable practices. Both for the impact that they have on the trial as well as the impact that they have on the Tribunal’s mission to seek justice and establish the truth.200 According to Article 91(B) the Judges must have strong ground of believing that a witness had the intent to provide false testimony. Also, Rule 90(H) provides that Paragraphs (B) to (G) apply mutatis mutandis to a person who 196 Ibid., para. 7; see also Prosecutor v. Bizimungu Oral Ruling on Mugenzi’s Motion for the Issuance of a Bench Warrant for Witness GFA or, alternatively to hold GFA in Contempt, (Rules 54 and 77 Rules of Procedure and Evidence) ICTR-99-50-T, 21 May 2008. 197 Ngirabatware, Decision on Allegations of Contempt see pp. 6–7 & 10–17. 198 See Joanna Pozen ‘Justice Obscured: The Non-Disclosure of Witnesses’ Identities in the ICTR Trials’ (2005–2006) New York University Journal of International Law and Politics 281, 281. 199 Prosecutor v. Kamuhanda, Oral Decision Rule 115 and Contempt of False Testimony, ICTR99-54A-A, 19 May 2005 (Hereinafter, Kamuhanda Appeals Decision for False Testimony). 200 Ibid.

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knowingly and willingly makes a false statement in a written statement taken in accordance with Rule 92bis which the person knows or has reason to know may be used as evidence in proceedings before the Tribunal. The test is the intent of willingly and knowingly giving false testimony, in Rutaganda, the Judges defined false testimony as a false statement made in court under oath or solemn declaration. False testimony is a deliberate offence, which supposes wilful intent on the part of the perpetrator to mislead the judge and thus to cause harm. It may consist of either an affirmation of a false fact or negation of a true fact.201 The Chamber enumerated that the four constituent elements of false testimony are: the witness must make a solemn declaration; the false statement must be contrary to the solemn declaration; the witness must believe at the time the statement was made that it was false; and there must be a relevant relationship between the statement and a material matter within the case.202 The Chamber noted that in accordance with the general rules of evidence, the onus is on the party pleading a case of false testimony to prove: the falsehood of the witness statements; that these statements were made with harmful intent, or at least that they were made by a witness who was fully aware that they were false; and the possible bearing of the said statements upon the judge’s decision.203 In Akayesu, the Judges dismissed a Defence motion, based on Rule 91, to direct the Prosecutor to investigate an alleged false testimony by a prosecution witness. The Chamber found that for the Defence to raise doubts as to the reliability of statements made by a witness, it was not by itself sufficient to establish strong grounds for believing that the witness may have knowingly and wilfully given false testimony.204 Thus, to prove the offence of false testimony, it is not sufficient to establish that a statement by the witness was false. It must also be shown that the false statement was a deliberate act, made wilfully and knowingly.205 A further principle established in the case was that inaccura201 Prosecutor v. Rutaganda, Decision on the Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness ‘E’, ICTR-96-3-T-T, 10 March 1998 (hereinafter Rutaganda Decision on False Testimony). 202 Ibid; Prosecutor v. Karemera et al., Decision on Joseph Nzirorera’s Motion to Appoint an Amicus Curiae to Investigator GAP for False Testimony and to Appoint an Amicus Curiae to investigate Prosecution Witness BDW for false testimony, ICTR-98-44-T, 6 April 2010, para. 5. 203 Ibid. 204 Akayesu judgement, para. 20. 205 Prosecutor v. Akayesu, Decision on the Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness “R”, ICTR-96-4-T, 9 March 1998, p. 3 (hereinafter, Akayesu Decision to Investigate False Testimony).

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cies and contradictions are a natural occurrence in testimony before the Court and are insufficient to establish false testimony. To deduce from any resultant contradictions and inaccuracies that there was false testimony would be akin to criminalizing frailties in human perceptions.206 Pursuant to 91(B) (i), the Judges may direct the Prosecutor to investigate the matter. Rule 91(C) provides that if the Chamber considers that there are sufficient grounds to proceed against a person for giving false testimony, the Chamber may: (i) in circumstances described in paragraph (B) (i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (B) (ii), issue an order in lieu of an indictment and direct amicus curiae to prosecute the matter. The Simba Appeals Chamber affirmed that Rule 91(B) (i) allows a Trial Chamber to direct the Prosecutor to investigate a witness for giving false testimony with a view to prepare and submit an indictment, if it believes that a witness has knowingly and wilfully given false testimony. A credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The Chamber stressed that the mere existence of discrepancies between a witness testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.207 The Chamber in Rutaganda declared Defence motions for false testimony by a prosecution witness admissible but without merits and that there were no grounds to request the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony against the witness.208 It ruled that the Defence did not demonstrate that the witness “knowingly and wilfully gave false testimony” as required by Rule 91(B). Rather the Defence, in support of the request, only referred to instances in the testimony, which gave rise to possible contradictions. The Judges held that the Defence restricted itself only to raising doubts as to the truth of the answers given by the witness during his appearance in response to the questions as to whether he had clearly explained to the Prosecutor that he was a witness to two alleged separate incidents of murder. The Judges held that the arguments so submitted by the Defence were pertinent only to raising doubts as 206 Akeyesu Judgement, paras. 139–140; Prosecutor v. Bagilishema, Decision on the Request of the Defence for the Chamber to Direct the Prosecutor to Investigate a Matter with a View to the Preparation and Submission of an Indictment for False Testimony, ICTR-9514-T, 11 July 2000, paras. 6–7 (hereinafter Bagilishema request for investigation for false testimony). 207 Simba Appeals Judgement, paras. 31–32. 208 Rutaganda Decision on False Testimony.

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to the credibility of the statements made by the witness rather than to showing that there are strong grounds for believing that there may have been false testimony. Obviously, raising doubts about the reliability of statements made by a witness is not in itself sufficient to establish strong grounds for believing that this witness knowingly and wilfully gave false testimony. Moreover, the Judges were of the opinion that, in the context of the on-going trials before the Tribunal, inaccuracies and other contradictions could eventually be raised during the overall evaluation of credibility upon the final determination of the probative value of the evidence presented at trial.209 Furthermore, the Rutaganda, Appeals Chamber enunciated the principle clearly making a distinction between issues of credibility and the issue of whether a witness’ statement is false. The Chamber ruled that a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The testimony of a witness may lack credibility even if it does not amount to false testimony within the meaning of Rule 91. Thus an investigation for false testimony is ancillary to the proceedings and does not impact on the accused right to a fair trial.210 In Kamuhanda the Prosecutor was directed by the judges to investigate allegations of interference with witnesses and the possibility of false testimony in pursuant to Rule 77(C) (i) and Rule 91(B). The Judges stressed that in so directing the Prosecutor, it leaves it to its discretion to take the eventual steps and measures, which it deems necessary and appropriate under the circumstances.211 Importantly, Rule 91(B) (ii) provides for safeguards which state: where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating proceedings for false testimony. In addition, no Judge who sat as a member of the Trial Chamber before which the witness appeared shall sit for the trial of the witness for false testimony.212 These safeguards prevent bias from the officials of the Court and thus uphold fair trial standards of the witness as an accused and also the rights of the accused of core crime. Also, Article 23(2) and Rule 101, provide for the Chamber to 209 Ibid. 210 Prosecutor v. Rutaganda, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, ICTR-96-3-A, 8 June 1998, para. 28 (hereinafter, Rutaganda Decision on Appeals to Investigate false Testimony). 211 See Kamuhanda Appeals Decision for False Testimony. 212 Rule 91(F).

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consider, inter alia, the gravity of the offences or totality of the conduct, the individual circumstances of the accused, any aggravating and mitigating circumstances including substantial cooperation with the Prosecutor by the convicted person before or after conviction, and the extent to which any penalty imposed by a court of any State on the accused for the same act has already been served. In accordance to Rule 91(G) the maximum penalty for false testimony under solemn declaration shall be a fine of $10,000 or a term of imprisonment of five years, or both. The payment of any fine imposed shall be paid to the Registrar to be held in the account referred to in Rule 77(H). It is worth mentioning that any person who incites a witness to provide false testimony may be prosecuted. Leonidas Nshogoza, a former ICTR Defence investigator was charged with contempt and attempt to commit contempt for, inter alia, attempting to fabricate additional evidence and to procure false statements from witnesses.213 3.3.3 Case-Law The Tribunal’s first prosecution for contempt of court for giving false testimony during its proceedings was in GAA.214 The Accused was a protected witness who testified in a different trial under the pseudonym GAA. GAA admitted that he willingly gave the false testimony when he appeared before the Appeals Chamber on 18 May 2005 in the case of Jean de Dieu Kamuhanda215 who appealed against his conviction and sentence.216 GAA repeatedly acknowledged that his testimony was false and asked for forgiveness. He pleaded guilty to one count of giving false testimony under solemn declaration.217 In discussing 213 Prosecutor v. Nshogoza, Indictment, ICTR-07-91-I, 7 January 2008 para. 5; See ICTR Nshogoza’s Appeal Dismissed, ICTR/INFO-9-2-634.EN, 16 March 2010, availbale at http://www.unictr.org/tabid/155/Default.apx?ID=1125 (last visited June 2013); see also indictment. 214 Prosecutor v.GAA, ICTR-07-90-R77. 215 Prosecutor v. Kamuhanda, ICTR-99-54A-A. 216 Prosecutor v. GAA, Judgement and Sentence, ICTR-07-90-R77, 4 December 2007, para. 5 (hereinafter, GAA Judgement and Sentence). 217 Ibid., paras. 3–9 & 12; GAA, Initial Appearance, ICTR-07-90-R77-I, Trial Transcript of 10 August 2007; GAA Decision on Prosecutor’s Application for Leave to amend the Indictment Rules 73, 50 and 51 and 62bis(A)(i) of the Rules of Procedure and Evidence 30 November 2007, para. 3; GAA, Designation of a Trial Chamber to Consider the Guilty and Not Guilty Pleas of GAA Rule 62 of the Rules of Procedure and Evidence ICTR-07-90-R77, 15 November 2007, para. 1; GAA, Confirmation of Indictment and Other Related Orders (TC), ICTR-07-90-R77, 11 June 2007; ICTR Press Release, Former Witness Sentenced to 9 Months for Contempt ICTR/INFO-9-2-541.EN, 3 December 2007 available at http://www

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the penalty to impose, the Chamber considered that the penalty should reflect the goals of retribution, deterrence, rehabilitation, and the protection of society.218 The Chamber held that false testimony under solemn declaration and contempt of the Tribunal are very grave offences, as they constitute a direct challenge to the integrity of the trial process. Maintaining the integrity of the administration of justice is particularly important in trials involving serious criminal offences. It is therefore necessary for general deterrence and denunciation to be given high importance in sentencing policies. Although all perjury is serious, the Chamber was of the view that the most serious category is where the perjured evidence is being given to lead to the conviction of an innocent person and the second most serious category is where, as in this case, the perjured evidence is given in the hope of procuring the acquittal of a guilty person. The Chamber therefore considered that the gravity of the offence required that a custodial sentence must be imposed taking into account the mitigating factors that had been established.219 GAA was sentenced to nine months imprisonment for contempt of the Tribunal and false testimony under solemn declaration. In it’s sentencing, the Chamber took into consideration the mitigating factors stressed by the Defence and considered that the sentencing range submitted by the Prosecutor was appropriate. Ruling that, it coincides with the Chamber’s views on the balance between the gravity of the offence and the mitigating factors submitted by the Accused.220 In this case the Tribunal exercised its authority to punish a false witness thereby upholding its obligation to protect the integrity of its proceedings. The decision reiterates that we share a common humanity not only for international crimes but also for crimes that affect the prosecution of these crimes. In the words of Dennis Byron, the ICTR established pioneering jurisprudence when it tried, convicted, and sentenced GAA for perjury. This was the first such case in the history of both international Tribunals. In this way, the ICTR has strengthened the fight against impunity by not only prosecuting perpetrators of heinous crimes, but also prosecuting those who aim to obstruct the courts’ ability to do so.221

218 219 220 221

.ictr.org/ENGLISH/PRESSREL/2007/541.htm (last visted November 2009) (hereinafter ICTR Press Reelase 3/12/07) ICTR Press ICTR Witness Pleas Guilty to Giving False Testimony  ICTR/INFO-9-2-529.EN, Arusha, 10 September 2007 available at http://www .ictr.org/ENGLISH/PRESSREL/2007/528.htm (last visited November 2009). Ibid., para. 8. Ibid., para. 10. Ibid., paras. 12–13; ICTR Press Release 3/12/07. Dennis C. M. Byron, ‘Looking at Legacy and Looking Back on the Legacy Symposium’ (2008) New England Journal of International and Comparative Law 319, 321.

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Notwithstanding the GAA judgement the Tribunal has not taking false testimony seriously. There are allegations of witnesses lying and being induced by public authorities or civil societies to provide false testimony.222 However, less importance has been placed on witnesses who actually commit crimes of perjury.223 According to Robinson, one of the most surprising things one finds at the ICTR is how many witnesses lie under oath.224 Alexander Zahar’s sheds some light on this problem he examines the problem of perjury, or false testimony, at the ICTR. He demonstrates this through the Rwamakuba trial judgement, which he describes as the problem’s apex. He observes that the problem of perjury may be defined as a reluctance to prosecute the offence where its commission is suspected. The hypothesis explored in his article is that the problem of perjury at the ICTR has combined with a systemic temptation for Rwandan witnesses to testify falsely, thus encouraging actual perjury. Along with other factors, the combination contributes to the unreliability of judicial fact-finding at the Tribunal and the risks of conviction of innocent persons. He argues that the discussion in the article fits within a broader questioning of the ability of international criminal tribunals to discover the truth.225 Also in the words of Combs, perjury is prevalent at the ICTR in particular because 222 Prosecutor v. Seromba, Judgment, ICTR-2001-66-I, 13 December 2006, para. 73 (hereinafter Seromba Judgment); Prosecutor v. Nyiramasuhuko, Judgment and Sentence, ICTR-9842-T, 24 June 2011, paras. 334–338 (hereinafter Nyiramasuhuko Judgment and sentence) Prosecutor v. Niyitegeka, Judgment, ICTR-96-14-T, 16 May 2003, para. 222 (hereinafter Niyitegeka Judgment); Prosecutor v. Karemera et al., Decision on Remand Following Appeal Chamber’s Decision of 16 February 2010, ICTR-98-44-T, 18 May 2010, paras. 1–3. 223 See Alexander Zahar, ‘The Problem of false Testimony at the International Criminal Tribunal for Rwanda’, in Andre Klip and Goran Sluiter (eds) Annotated Leading Cases of International criminal Tribunals, Vol. 25: the International Criminal tribunal for the Former Yugoslavia 2006–2007 (Intersentia 2010) pp. 509–522; Göran Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) Journal of International Criminal Justice 962, 971 & 967; Goran Sluiter, ‘The ICTY and Offences against the Administration of Justice’ (2004) Journal of International Criminal Justice 631, 637–641; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pp. 855–856. 224 Peter Robinson ‘So You want to Be an International Criminal Lawyer?: Getting and Defending A Case at the International Criminal Tribunal for Rwanda’ (2008) New England Journal of International and Comparative Law 277, 286; See also Jenia Iontcheva Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) Virginia Journal of International Law 529, 575. 225 Alexander Zahar, ‘The problem of false testimony at the International Criminal Tribunal for Rwanda’, in Andre Klip and Goran Sluiter (eds) Annotated Leading Cases of International Criminal Tribunals: International Criminal Tribunal for Rwanda, 2006 (Intersentia Publishing 2010) pp. 509–522.

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virtually every ICTR case has featured either an alibi or some other form of blatant contradiction between witnesses for the defence and for the prosecution. In reviewing ICTR transcripts and judgments, Combs found that 90 percent of the cases featured at least one example of diametrically opposed testimony between one or more witnesses.226 She observes that certainly, some of the instances of contradictory testimony probably reflect poor memory and perception, rather than perjury. But conflicting testimony is so prevalent in ICTR cases that it would be hard to dismiss all or even a significant percentage of it as the result of honest mistakes.227 Take for instance Rwamakuba where all the eighteen prosecution witnesses did not testify accurately or reliably at trial.228 Will this be said to be an honest mistake on the part of all eighteen witnesses that their testimonies were either inconsistent with the Indictment or contained other discrepancies which could not be satisfactorily explained.229 From all indication these witnesses may have lied, the Judges ruled that in their view, the major inconsistencies between the witnesses’ testimonies and their prior statements and testimonies in other cases cannot be explained by the time elapsed, translation discrepancies, the manner in which the prior statements were taken or the impact of trauma inflicted upon the witnesses. As a result they undermined the credibility and reliability of these prosecution witnesses.230 In view of their findings it is evident that the Judges may have been suspicious of false testimony. With many allegations of false testimony and with the thousands of witnesses who have assisted the Tribunal with evidence it is surprising that only one witness has been prosecuted and sanctioned. 3.4 Conclusion It is evident that the ICTR has authority and jurisdiction over witnesses, it was ruled in Bagosora that the spirit and purpose of the Statute confers on it an 226 Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 256. 227 Ibid., p. 259; see also Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 149–166. 228 Rwamakuba Judgement paras. 195–200. 229 Ibid., para. 214. 230 Ibid., para. 203.

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incidental or ancillary jurisdiction over witnesses. As they are such individuals other than those whom the Tribunal may prosecute and try and are persons who are of assistance in the Tribunal’s task of dispensing criminal justice entrusted to them.231 Having established this fact, this conclusion will analyse the extent by which the ICTR has exhibited cosmopolitan features. The ICTR has portrayed aspects of a cosmopolitan court in its decision in Karemera to prepare witnesses before testimony. A significant practice that might ensure a witness provides truthful testimony on stand and guarantees the rights of the accused.232 Also, in Kayishema in ruling that protective measures should not extend to providing immunity from criminal prosecution, the ICTR showed proof of a Tribunal that upholds its obligation.233 The decision reiterates the shared value and obligations argued in chapter one that those who have committed grave crimes that affect humanity should be punished even as a witness. Furthermore, in exercising its authority to acquit accused persons in Rwamakuba and Kajelijeli respectively, as a result of the unreliability of the witnesses in those cases, the ICTR demonstrated aspects of a cosmopolitan court guaranteeing the rights of the accused to a fair trial.234 The Judges also showed commitment to cosmopolitan justice respecting the fair trial rights in Akayesu where it attached less value to witness unsworn statements.235 The Judges have also asserted their express authority in Kajelijeli to ensure that their directions are followed emphasising that when its orders are violated then the conduct harms the integrity of its proceedings.236 Also, in reiterating its power to subpoena witnesses under the threat of penalty in Semanza, Karemera and Bagosora for their attendance as it ensure that all necessary testimony could be received for the conduct and fairness of the trial.237 The ICTR has also exercised its authority by initiating contempt proceedings against individuals for knowingly and wilfully threatening, intimidating and interfering with witness testimony.238 If officials of the Tribunal tend to tamper with witnesses they bring the Tribunal’s reputation and the credibility of proceedings into disrepute. These officials have an obligation to carry out their duties 231 232 233 234 235 236 237 238

Bagosora Subpoena Requests, para. 2. See Karemera Proofing Decision para. 15. Kayishema Decision on the Motion for the Protection of Defence Witnessses. Rwamakuba Judgement paras. 202–205 & 214–215 and p. 86; Kajelijeli Judgment paras. 917–925. Akayesu Judgement para. 137. Kajelijeli Motion to hold members of the OTP in Contempt paras. 14–15. Semanza motion for subpoenas para. 18; Bagosora Subpoena Decision; Karemera motion for subpoena rule 92 bis witnesses. Ngirabatware Decision on Allegations of Contempt pp. 6–7; Nshogoza Indictment.

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in the most honourable and efficient way possible. Finally, GAA judgement exhibits evidence of a Court that furthers cosmopolitan ideals. The judgment reiterates the common understanding of all humanity that false testimony under solemn declaration and contempt are very grave crimes that cause harm to the integrity of the proceedings and constitutes a direct challenge to the integrity of trial process.239 Notwithstanding GAA, with thousands of witnesses who have provided testimony and allegations of false testimony being a problem at the Tribunal, the Judges have failed to uphold their obligation to sanction other false witnesses. Many witnesses who come before the ICTR it has been alleged have the tendency of providing false testimony or have been incited to commit perjury for whatever reasons.240 The Tribunal’s reluctance to sanction false witnesses brings to question its standing as a cosmopolitan court. Although reiterating in Kamuhanda that it will not tolerate occurrences of false testimony the ICTR seemed to have turned a blind eye to these occurrences.241 In punishing just one witness the Tribunal fails to demonstrate its commitment as an international tribunal committed to cosmopolitan justice. Following, the accuracy of the Tribunal’s judgements and its credibility depends on the veracity of witness evidence. The Tribunal has been said to serve as a documenter of truth. According to Timothy Gallimore, testimony of witnesses is an important part of constructing the history of Rwanda and can provide a basis on which to construct a new collective identity in the postconflict era. He observes that the Tribunal functions as a guardian of history particularly judicial history, giving a verified factual account of what happened. Thus, recording in many ways, providing a truth that would not otherwise be told by traditional historians.242 This assertion by Gallimore brings to mind factors that may have impaired testimony being properly assessed at the ICTR such as educational, cultural and mis-interpretation and also the lying witnesses. If socio-cultural norms and misinterpretations did affect the prospect of making accurate assessments of witness testimony at the ICTR then the Tribunal cannot be regarded as a guardian of history. If witness testimony is being mistranslated then the story told by witnesses is distorted, if a witness 239 GAA Judgement and Sentence, para. 10; Kamuhanda Appeals Decision for False Testimony. 240 Seromba Judgment para. 73; Nyiramasuhuko Judgment and sentence paras. 334–338; Niyitegeka Judgment para. 222. 241 Kamuhanda Appeals Decision for False Testimony. 242 Timothy Gallimore, ‘The Legacy of The International Criminal Tribunal for Rwanda (ICTR) and its Contribution to Reconciliation in Rwanda’ (2008) New England Journal of International and Comparative Law 239, 240 & 257–258.

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cannot estimate time or give accurate dates or respond to questions because he/she is illiterate then an accurate account of events is not given. Similarly in the case of false witnesses, the role of the Judges as fact finders and documenters of truth become questionable as the Judges do not collect the exact facts thus history distorted. In Akayesu and Bagilishema the Judges did affirm that inaccuracies and contradictions are natural occurrences in testimony before the ICTR, they should have taken effective measures to address this situation.243 The Judges, prosecution, investigators should have created effective mediums during investigations and the trials to understand the local perceptions of these witnesses to testimony, to trials and generally to their role as witnesses. This failure of the Tribunal and most especially its negligence in bringing to justice false witnesses questions its full commitment to cosmopolitan principles.

243 See Akayesu Judgement paras. 139–140; Bagilishema request for investigation for false testimony paras. 6–7.

Chapter 4

Special Court for Sierra Leone (SCSL) Principally concerned in bringing justice for Sierra Leonean’s affected by grave international crimes committed on their territory,1 the SCSL largely relies on witnesses. For instance, in the Taylor case 115 witnesses testified viva voce.2 The treaty and rules makes provision for the SCSL witness regime.3 Like the other chapters on the ad hoc Tribunals, this chapter seeks to establish the SCSL cosmopolitan grounding with regards to witnesses, focusing on its practice and jurisprudence. Following a similar structure, it explains what the court has been doing in order to establish its jurisdiction and authority over witnesses and, its justification for imposing sanctions on witnesses. 4.1

Witness Journey

4.1.1 Sourcing /Modelling Unlike the ICTY/ICTR the location of the SCSL to where the alleged crimes occurred facilitated the sourcing of witnesses. Locating witnesses was therefore an easy task, as investigators went around the country and sometimes abroad interviewing witnesses and working closely with home-based and international organisations to sort out these persons.4 The decision not to prosecute 1  See UNSC Resolution S/RES/1315 (2000) 14 August 2000; About The SCSL available at http:// www. sc-sl.org/ABOUT/tabid/70/Default. aspx (last visited March 2013); David Held, Cosmopolitanism: Ideals and Realities (Polity 2010) p. 55. 2  Prosecutor v. Taylor, Judgement SCSL-03-01-T 18 May 2012 para. 19 (Hereinafter Taylor Judgement). 3  Statute of the Special Court for Sierra Leone, available at: http://www. sc-sl. org/LinkClick .aspx?fileticket= uClnd1MJeEw%3d&tabid=176 (last visited January 2011). SCSL Rules of Procedure and Evidence available at http://www.scsl.org/LinkClick.aspx?fileticket=yNjqn5TIYK s%3d&tabid=176 (last visited January 2011); See also Thekla Hansen-Young, ‘Defining Rape: A Means to Achieve Justice in the Special Court for Sierra Leone’ (2005) Chicago Journal of International Law 479, 481; Michael Nesbitt, ‘Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How Trials and Truth Commissions can Co-exist’ (2007) German Law Journal 977, 990–991; Laura A. Dickinson, ‘The Promise of Hybrid Courts’ (2003) American Journal of International Law 295, 295. 4  See First Annual Report of The President of the Special Court for Sierra Leone for the period of 2 December 2002–1 December 2003 p. 15 (hereinafter, First Annual Report) available at

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004301955_006

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those without a leadership role also assisted the solicitation of witness cooperation from former subordinates of the accused.5 These witnesses are usually selected by the prosecution and defence teams who then inform the Witness and Victim’s Section (WVS) on a later date prior to testimony.6 A definition has not been given for witnesses by the treaty or rules, however Article 1 of the Practice Direction of Allowances for Witnesses and Expert Witnesses, defines a witness as a person who gives or is due to give testimony before a chamber as a result of being called by the parties; summoned by a Judge or a Chamber under Rule 54 or ordered by a Chamber to give testimony by deposition under Rule 71 or via communications media, including video and closed-circuit television under Rule 85.7 For the purpose of this research, I will describe below the various kinds of witnesses divided into two groups, crime-based witnesses who are witnesses of fact and expert witnesses.8 4.1.1.1 Crime-based Compared to the ad hoc Tribunals where lower level offenders were prosecuted the SCSL has a mandate to prosecute ‘persons who bear the greatest responsibility’ for crimes committed during the conflict.9 Thus, indicating a smaller proportion of crime-based witnesses being used.10 In Sesay this group was categorised from A to C, category A consists of victims of sexual assault and

http://sc-sl.org/specialcourtannualreport2002-2003.pdf; (last visited November 2009); Redress, Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court September 2006 pp. 36–37 available at http://www.redress.org/downloads/publications/ childsoldiers.pdf (last visited June 2013) (Hereinafter, Redress Victim Report). 5   Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 82–83. 6   Rebecca Horn, Simon Charters & Saleem Vahidy, ‘Witnesses in the special court for Sierra Leone: The Importance of the Witness-Lawyer Relationship’ (2009) International Journal of Law, Crime and Justice 25, 28. 7   Practice Direction on Allowances for Witnesses and Expert Witnesses Testifying in the Hague, 8 June 2007 available at http://www.scsl.org/LinkClick.aspx?fileticket=tKvBtyNJYf o%3d&tabid=176 (hereinafter, Practice Direction) (last visited November 2010). 8   See Prosecutor v. Sesay et al., Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, SCSL-04-15-T 5 July 2004 (Hereinafter, Sesay Decision on Protective Measures); Stephen J. Rapp, ‘The Compact Model in International Criminal Justice: The Special Court for Sierra Leone’ (2008) Drake Law Review 11, 30. 9   Article 1. 10  Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 77 & 83.

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gender crimes, while category B witnesses consist of children.11 These Children may include child combatants by virtue of their age, they are uniquely situated to describe the details of their conscription, participation in combat, and they assert knowledge of command structure and operations that allows them to testify to counts of indictments. Also, other children who witnessed the commission of the crimes under the SCSL jurisdiction fall within this category.12 Category C includes insider witnesses13 they provide “irreplaceable” testimony information that is unique to that person and could not be provided by an alternate witness.14 Insider witnesses are more prominently used to establish or contest the chain of command and the knowledge and orders of the accused. In Taylor for instance insider witnesses were of critical importance because of the lower threshold of joint criminal enterprise culpability.15 These witnesses may be high-ranking adult ex-combatants and former adult soldiers. According to David Cohen, one of the things that have been difficult for many Sierra Leoneans to understand is the apparent impunity enjoyed by those below the “greatest responsibility” thresholds, who nonetheless played important roles in the violence and who have often testified about their roles as “insider witnesses” for the prosecution.16 Apparently, some of these insider witnesses may have benefitted from the Court such as getting immunity from 11  Sesay Decision on Protective Measures para. 30; Kyra Sanin and Anna Stirnemann, Child Witnesses at the Special Court for Sierra Leone (War Crimes Studies Center University of California, Berkeley February 2006) pp. 3–8 (hereinafter, Berkeley SCSL Witness Report); Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) p. 87. 12  Berkeley SCSL Witness Report, pp. 3–8, 11 & 13–14; Rebecca Horn, Simon Charters and Saleem Vahidy, ‘Testifying in an International War Crimes Tribunal: The Experience of Witnesses in the Special Court for Sierra Leone’ (2009) International Journal of Transitional Justice 135, 143. 13  Sesay Decision on Protective Measures, paras. 30 & 33. 14  Berkeley SCSL Witness Report, p. 7. 15  Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 77 & 81–83. 16  David Cohen, “ ‘Hybrid’ Justice in East Timor, Sierra Leone and Cambodia: ‘Lessons Learned’ and Prospects for the Future” (2007) Stanford Journal of International Law 1, 26; Sara Kendall & Michelle Staggs, Interim Report on the Special Court for Sierra Leone, (War Crimes Studies Center University of California, Berkeley, April 2005) pp. 6–7; Cecily Rose, ‘Troubled Indictments at the Special Court for Sierra Leone the Pleading of Joint Criminal Enterprise and Sex-based Crimes’ (2009) Journal of International Criminal Justice 353, 356; Matiangai Sirleaf, ‘Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the Truth and reconciliation Commission for Liberia’ (2009) Florida Journal of International Law 209, 245.

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prosecution accepting to testify in order to escape indictment or to benefit from relocation.17 Notwithstanding, the fact that an insider witness is relevant in assisting the court to understand the mind and motive of the higher level accused. In my opinion, the use of insider witnesses should not be to the detriment of the victim’s rights to justice. If insider witnesses perceived their role as witnesses, as some form of bargain to get immunity from prosecution then they undermine the role of the court. That is one that outlaws genocide, war crimes and crimes against humanity. Moreover, these witnesses could be considered co-perpetrators or accomplices as they may have operated with the accused persons. Thus, caution need be exercised not only in examining their testimony, but also questions must be asked as to the motive of the insider witness to assist the court with testimony. 4.1.1.2 Expert-witnesses Rule 94bis relates to the testimony of experts but does not provide for a definition of an expert-witness. A definition of an expert is contained in the SCSL Headquarters Agreement.18 Article 1(f) provides that expert means a person referred to as such in Article 15 to present testimony based on special knowledge, skills, experience or training.19 In Norman an expert has been defined as a person whom by virtue of some specialised knowledge, skill or training can assist the tier of fact to understand or determine an issue in dispute. He/ she may provide the Judges with any information useful to an evaluation of the facts.20 In Taylor the Judges held that before determining whether witness evidence is admissible as expert evidence, they must first decide whether the witness possess the relevant specialised knowledge acquired through

17   See Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 136 and 141. 18  Headquarters Agreement between the Republic of Sierra Leone and the Special Court for Sierra Leone available at http://www. sc-sl.org/LinkClick.aspx?fileticket=z8NhRqbTE3g% 3d&tabid=176 (last visited October 2010). 19  See Article 15; Article 1 Practice Direction. 20  Prosecutor v. Norman et al., Decision on Prosecution Request for Leave to Call Additional Witnesses and for Orders for Protective Measures, SCSL-2003-08-PT 21 June 2005, p. 5 (Hereinafter, Norman Decision on Prosecution Request); Prosecutor v. Brima et al., Decision on Prosecution Request for Leave to Call an Additional Witness (Zainab Hawa Bangura) Pursuant to Rule 73bis(E), and on Joint Defence Notice to Inform the Trial Chamber of Its Position Vis-à-vis the Proposed Expert Witness (Mrs. Bangura) Pursuant to Rule 94bis, SCSL-04-16-T-365, 5 August 2005, para. 23.

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e­ ducation, experience or training in the proposed field of expertise to qualify as an expert.21 His/Her prima facie qualification as an expert is based on the witness’s credentials and experience as outlined in his/her curriculum vitae.22 Also, in order to be entitled to appear, an expert-witness must not only be a recognised expert in his/her field, but must also be impartial in the case.23 The Judges have adopted the ICTR approach in Karemera24 in determining that it does not require expert opinion in order to appreciate the contents of publicly distributed human rights reports or statements made by victims or factual witnesses.25 In Taylor, the Judges evaluated the probative value of the expert evidence taking into account the professional competence of the expert, the methodology used and the credibility of the findings made in the light of all the other evidence in the trial. More so, in assessing the weight to be given to expert evidence, the Trial Chamber has taken into consideration the sources upon which the expert based his/her opinion and the extent to which the expert has been able to provide details regarding the basis of the opinion.26 Where expert testimony or reports went beyond their parameters by drawing conclusions touching upon the ‘ultimate issue’ in this case, i.e., the individual criminal responsibility of the Accused, the Trial Chamber disregarded such conclusions.27 Finally, like the ICTY/ICTR the mere fact that an expert-witness is employed by or paid by a party does not disqualify him/her from testifying as an expert-witness.28

21  Prosecutor v. Taylor, Decision on Defence Application to Exclude the Evidence of Proposed Prosecution Expert Witness Corinne Dufka or, in the Alternative, to Limit its Scope And on Urgent Prosecution Request for Decision, SCSL-03-1-T 19 June 2008 para. 12 (Hereinafter, Taylor Decision on Defence Application); Prosecutor v. Norman et al., Decision on Fofana Submissions Regarding Proposed Expert Witness Daniel J. Hoffman PhD, SCSL-04-14-T, 7 July 2006 (Hereinafter, Decision on Fofana Submission). 22  Prosecutor v. Norman, Decision on Prosecution Request; Decision on Fofana Submission; Sesay et al., Decision on Prosecution Request for Leave to Call an Additional Expert Witness, SCSL-04-15-T 10 June 2005. 23  Taylor Decision on Defence Application, para. 14. 24  See Prosecutor v. Karemera et al., Decision on Prosecution Motion for Reconsideration of the Decision on Prospective Experts Guichaoua, Nowrojee and Des Forges, or for Certification, ICTR-98-44-T 16 November 2007, paras. 13–14. 25  Taylor Decision on Defence Application, para. 19. 26  Taylor Judgement para. 208. 27  Ibid. para. 209. 28  Taylor Decision on Defence Application para. 15.

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4.1.2 Cost/Inducement The costs of allowances necessarily and reasonably incurred by witnesses as a result of testifying before a Chamber are met by the SCSL in accordance with the Practice Direction.29 The Practice Direction provides for a wide range of allowances to be paid to witnesses testifying before the SCSL. These include an attendance allowance as compensation for earnings and time lost as a result of testifying, accommodation, meals, transport, medical treatment, childcare and other allowances. No distinction is made between witnesses for the prosecution and defence. All the witness needs to do is testify, as they are not required to submit a request or any supporting documentation.30 The SCSL witness allowance policy has been spawned with much criticism because of the hefty witness payments being made.31 In Taylor, questions were asked about the excessive payments made to certain witnesses by the Prosecution for instance a certain witness TFI-579.32 While the Chamber noted the questions about payments made and did not accept that they improperly influenced the witness in his testimony, it is evident that these payments were excessive.33 TF1-579 an insider witness was paid by the Prosecution $USD 2,345 and 126,000 Leones (approximately $USD 42) in total.34 For three meetings at the end of March to the beginning of April 2008, the witness received $USD 150 in total for transportation and lost wages. Although there is no record of interview by the Prosecution during those dates, the meetings appear to have been associated with relocation and security concerns. The witness had been given $USD 500 the previous year for that purpose, and another $USD 500 was given to him for the same purpose in June 2008. On 4 August 2008, the witness 29  Taylor Judgement, para. 190. Note that the SCSL is funded by donations particularly from UN member States. See Special Court Funding Mechanism available at http://www.sc-sl .org/HOME/tabid/53/Default.aspx (last visited March 2013); see also Shana Eaton, ‘Sierra Leone: The Proving Ground for Prosecuting Rape as a war Crime’ (2004) Georgetown Journal of International Law 873, 911; J. Peter Pham, ‘A Viable Model for International Criminal Justice: The Special Court for Sierra Leone’, (2006) New York International Law Review 37, 89; ZHU Lijiang, ‘Chinese Practice in Public International Law: 2007 (II)’ (2008) Chinese Journal of International Law 735, 758. 30  Ibid.; Articles 2 and 6 Practice Direction. 31  Berkeley SCSL Witness Report pp. 23–24; See James Cockayne, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2005) Fordham International Law Journal 616, 658; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 138. 32  Taylor Judgement, para. 344. 33  Ibid. 34  Ibid. NB: The witness was an SSS member who voluntarily joined the NPFL see para. 39.

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received $USD 250 for family assistance, which he explained was given to him to cover his lost wages, in order to feed his family. However, transportation, lost wages and communication are items that were already reimbursed on the same date. Moreover, a week later, the witness was given another $USD 100 for medical, transportation costs and lost wages.35 These kind of payments made to witnesses creates a negative impression that witnesses are being paid for their testimony and thus undermines the reliability of that testimony. In my view, it tends to justify some concerns made earlier as to the motivations of some insider witnesses to assist the court. Are they motivated by these payments or by the desire for the world to know the truth? SCSL stipends come to 16, 000 Leones per day (that is US $5.25) and it has been argued that the daily allowance that the Court provides exceeds the average Sierra Leonean income which is less than US $1 per day.36 According to Nancy Combs, whether the stipends and services provided to witnesses, motivated individuals to fabricate testimony in order to become witnesses cannot be known. But there have been isolated instances of financial motivated lying.37 For instance at least one witness had lied about his age at the SCSL because he believed that older witnesses would obtain more benefits than the younger ones.38 Also, insider witnesses have demanded increased allowances when they get very close to testimony to follow through with testimony. The judges have weighed enthusiasm for an expeditious process ahead of determining whether the prosecution induced a key witness as it was alleged that the witness was on repeatedly fully funded Sunday lunch excursions to one of the most expensive and exclusive seaside resorts.39 Significantly, the prosecution seems to have an unfettered discretion to take all necessary measures for the purpose of an investigation.40 Rule 39(ii) provides that the Prosecutor may take all measures deemed necessary for the purpose of the investigation, including the taking of any special measures to provide for the safety, support and assistance of potential witnesses and sources. Pursuant to the rule, investigations are provided with their own Witness Management Unit (WMU) 35  Ibid. 36  Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 138. 37  Ibid. p. 140. 38  Ibid.; see RUF Transcript 14 April 2005 at 23–26. 39  Prosecutor v. Sessay et al., Transcript, Trial Chamber I, SCSL-2004-15-T, 20 June 2007 pp. 48–61 (hereinafter, Sesay Transcript 2007). 40  Prosecutor v. Sesay et al., Motion to request the Trial Chamber to hear evidence concerning the prosecution’s witness management unit and its payment to witnesses, SCSL-0415-T, 5 June 2008 para. 13.

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and special fund to assist the safety, support and assistance of witnesses. It has been observed that the Rule appeared open to abuse by investigators for instance investigations or prosecution have allegedly been inducing witnesses with increase daily amounts, school fees and rents which is seen as a means of soliciting their testimony.41 Consistent jurisprudence holds that the issue of whether there has been any abuse of the Prosecution’s discretion under Rule 39(ii) i.e. the payments might not have been necessary for the safety support or assistance of witnesses would be considered at the stage of final deliberations taking into account, the evidence adduced and the cross-examination of the witness in question.42 In this regard, in assessing witness credibility, the Taylor Judges ruled that the SCSL has taken into account information about witness payments made both by the WVS and by the prosecution, and has considered any cross-examination of the witness in relation to these payments. In particular, the Judges have considered, on a case-by-case basis whether the benefits conferred upon and/or payments made to witnesses went beyond that “which is reasonably required for the management of a witness”. In assessing whether such a payment is “reasonably required”, the Judges have also taken into account the cost of living in West Africa and the station in life of the witness receiving the payment.43 In addition, the Practice Direction requires the WVS to provide records of payments to the Special Court’s Finance Section, and vice versa. In Taylor, records of disbursements to prosecution witnesses were disclosed to the defence pursuant to Rule 68 of the Rules, and disbursement forms concerning witnesses for both parties have been admitted into evidence, and used to cross-examine witnesses.44 In some cases, the Prosecution also made payments to and/or conferred benefits upon witnesses outside of the WVS framework via its WMU. Information about these payments has also been disclosed to the defence, admitted into evidence, and used to cross-examine Prosecution

41  Prosecutor v. Sesay et al., Motion to request the Trial Chamber to hear Evidence concerning the Prosecution’s Witness Management Unit and its Payment to Witnesses, SCSL-04-15-T, 30 May 2008, p. 6 (hereinafter Sesay Motion Prosecutor’s Witness Management); Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 84–85. 42  Taylor Judgement para. 194; Prosecutor v. Taylor, Decision on Public with Confidential Annexes A–J and Public Annexes K–O Defence Motion Requesting an Investigation into Contempt of Court by the Office of the Prosecutor and its Investigators, SCSL-03-01-T-1118, 12 November 2010, para. 40. 43  Taylor Judgement, para. 195. 44  Taylor Judgement, para. 191.

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witnesses.45 In the case of Sesay, a motion to hear evidence concerning payment to witnesses by the prosecution’s WMU was declined by the court on the basis that no ‘material prejudice’ had been caused to objecting parties and that the motion had not been raised at the earliest opportunity.46 According to Mahony, the prioritisation of expediency ahead of ascertaining a key element of a fair trial is regrettable, and does not uphold the credibility of the justice process.47 The decision in Sesay affects the credibility of the SCSL proceedings if theses witnesses in the case were paid and the prosecution seemed to have induced these witnesses with payments. It was the responsibility of the Judges as in Taylor to establish the truth and hear evidence concerning payments. The issue of witness allowance is a sensitive one and has to be subject to extensive cross-examination and disclosure. Unlike the prosecution, the defence has no legal mandate to facilitate finance it is depended on the WVS to provide for upkeep of its witnesses.48 Worth stating that despite criticisms and failures to its allowance scheme, the SCSL has maintained that its witness allowance scheme is credible and it is within the SCSL mandate to ensure that witnesses do not suffer harm from testifying. The WVS is bound by its mandate, SCSL rules and international standards to provide health care, food and shelter.49 4.1.3 Proofing and Familiarisation Like the Ad hoc Tribunals witness proofing and familiarisation is a feature at the SCSL. The Judges have held that the practice of proofing witnesses was legitimate.50 Before a witness is due to testify he/she receives a courtroom briefing from the WVS to familiarise them with the courtroom and its 45  Ibid. para. 192. 46  Prosecutor v. Sesay et al., Decision on Sessay motion to request the Trial Chamber to hear evidence concerning the prosecutor’s witness management unit and its payments to witnesses, SCSL-04-15-T, 25 June 2008 p. 3 (hereinafter, Sesay request to hear evidence on WMU payments). 47  Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 85–86 & 90–91. 48  Ibid. p. 86; Geert-Jan Alexander Knoops, ‘The Dichotomy Between Judicial Economy and Equality of Arms within International and Internationalised Criminal Trials: A Defense Perspective’ (2005) Fordham International Law Journal 1566, 1587; Human Rights Watch, Justice in Motion: The Trial Phase of the Special Court for Sierra Leone (2005) pp. 15–16. 49  See Berkeley SCSL Witness Report, p. 25. 50  Prosecutor v. Sesay et al., Judgement, SCSL-04-15-T, 2 March 2009 para. 121 (hereinafter, Sesay Judgement); Prosecutor v. Sesay et al., Decision on the Defence Motion for the Exclusion of Certain Portions of Supplemental Statements of Witness TF1-117, SCSL-200415-T 27 February 2006 (hereinafter, Sesay Statements of Witnesses).

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procedures. This may include touring the courtroom, explaining the testimony experience, protocol and procedure, familiarising witnesses with their statements or a full preparation for any psychologically difficult aspect of witness testimony. Witnesses also spend time with their legal teams, reviewing their statement and being prepared for their time in court.51 4.1.4 Witness Right to Protection The governing statutory provisions on the issue of protective measures are embodied in both the Statute and Rules. The applicable rules for an application for protective measures for witnesses include Rules 69, 75, 78 and 79. Evidentiary procedures enable the Judges to “order appropriate measures to safeguard the privacy and security of victims and witnesses provided that the measures are consistent with the rights of the accused.”52 In deciding that protective measures be granted to witnesses the SCSL has affirmed that potential threats to the security of witnesses still exist in Sierra Leone.53 The Court recognized in Gbao that unlike the other tribunals the SCSL has a unique feature of being located in Sierra Leone where the offences charged against the accused are alleged to have been committed. This fact does have substantial 51  See Rebecca Horn, Simon Charters & Saleem Vahidy, ‘Witnesses in the special court for Sierra Leone: The importance of the witness-lawyer relationship,’ (2009) International Journal of Law, Crime and Justice 25, 28; Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) p. 87. 52  Rule 75(A); Prosecutor v. Taylor Decision on Confidential Urgent Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure and on Public Urgent Prosecution Motion for Leave to Substitute a Supplemented Witness List as Annex A(4) of the Confidential Urgent Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure filed on 8 March 2007 and on Public Urgent Prosecution Request for Interim Measures, SCSL-03-1-PT 26 March 2007 (hereinafter, Taylor Decision on Confidential Urgent Motion); Prosecutor v. Norman et al., Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, SCSL-04-14-T 8 June 2004, para. 27 (hereinafter, Norman Modification of Protective Measures); Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) p. 77; James Cockayne, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2005) Fordham International Law Journal 616, 657; Berkeley SCSL Witness Report, pp. 16–32. 53  Taylor Decision on Confidential Urgent Motion; Prosecutor v. Taylor, Decision on Defence Motion to Lift the Redactions of Identifying Information of Fifteen Core Witnesses, SCSL-03-1-PT, 21 March 2007 paras. 16 & 38 (hereinafter, Taylor Decision on Redaction); Prosecutor v. Norman et al., Ruling on Motion for Modification of Protective Measures for Witnesses, SCSL-04-14-T-274, 18 November 2004 para. 47 (hereinafter, Norman Ruling on Protective Measure).

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impact on the security considerations for victims and witnesses.54 In addition those who put witnesses at risk by breaching protective measures may be held in contempt.55 The WVS is the appropriate organ to contact witnesses, statutorily tasked, inter alia, with providing appropriate assistance, protection, security and support for witnesses who appear before the Court pursuant to Article 16(4) and Rule 34.56 The section also provides for relocation within or outside of Sierra Leone for particularly vulnerable witnesses and other forms of post-trial protection and support.57 Some witnesses most especially, insider witnesses are alleged to have taken advantage of the relocation system as a motivation to testify.58 However, the SCSL Registrar has indicated that: “relocation is a last resort” and is “only provided to those witnesses who are considered most at risk on account of their testimonies”. It is resorted to only after the witness has testified 54  Prosecutor v. Gbao Decision on the Prosecution Motion for Immediate Protective Measures for Victims and Witnesses and for Non-Public Disclosure, SCSL-2003-09-PT 10 October 2003, paras. 21–25 (hereinafter, Gbao Decision on Immediate Protective Measures); Norman Ruling on Protective Measures paras. 37–39 & 43; Prosecutor v. Kodewa, Ruling on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Disclosure and Urgen Request for Interim Measures until Appropriate Protective Measures are in place, SCSL-04-14-T 10 October 2003, para. 24 (hereinafter, Kodewa Ruling on protective Measures); Prosecutor v. Fofana, Appeals Judgment SCSL-04-14-A 28 May 2008 (hereinafter, Fofana Appeals Judgement) Partially Dissenting Opinion of Honourable Justice Renate Winters para. 79; Prosecutor v. Norman et al., Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa SCSL-04-14-T, 2 August 2004 para. 8; See also Chris Mahony, The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) pp. 80–81; Valerie Oosterveld, ‘Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes’ (2009) American University Journal of Gender, Social Policy and the Law 407, 424. 55  Independent Counsel v. Margaret Brima Sentencing Judgment in Contempt Proceedings, SCSL-2005-02/SCSL-2005-03, 21 September 2005 para. 23 (hereinafter, Margaret Brima Contempt judgement). 56  Prosecuor v. Norman et al., Decision on Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses SCSL-04-14-T 20 June 2006, para. 23. 57  SCSL Second Annual Report of the President of the Special Court for Sierra Leone: For the Period 1 January 2004–17 January 2005 at 29, 32–33 available at http:// www. sc-sl. org/ specialcourtannualreport2004-2005. pdf (last visited November 2009). 58  See Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 136 and 141.

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and on the basis of threat assessments”.59 In Taylor, the Judges took in consideration evidence that witnesses have been promised relocation or have in fact been relocated, the effect that such promises may have had on their testimony, the opportunity that the defence had to cross-examine the witnesses about such offers, and any cross-examination in relation to these issues, on a case by case basis.60 4.2

Obligations Attached to Witnesses

This part examines obligations attached to witnesses i.e. duty to testify/obey orders and that of the Judges to evaluate testimony. Before doing so, it is worth mentioning here that the Judges may order the prosecutor to provide a list of witnesses it intends to call with the name or pseudonym of each witness; a summary of the facts on which each witness will testify; the points in the indictment on which each witness will testify; and the estimated length of time required for each witness pursuant to Rule 73bis(B).61 Rule 73bis(E) further provides that after the commencement of the Trial, the Prosecutor may, if he considers it to be in the interest of justice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The Judges in Norman elaborated factors that should be considered as follows: the materiality of the testimony, the complexity of the case, prejudice to the defence, including elements of surprise, on-going investigations, replacements and corroboration of evidence.62 These considerations under Rule 73bis(E) require a close analysis of each witness, including the sufficiency and time of disclosure of witness information to the Defence, the probative value of the proposed testimony in relation to existing witnesses and allegations in the indictments, the ability of the defence to make an effective cross-examination of the proposed testimony, given its novelty or other factors and the justification offered by the Prosecution for the addition of the witness. When applying the above-mentioned factors, the Chamber adheres to the principle of law that the Prosecution should not be allowed to take the Defence by surprise with additional witnesses and should fulfil in good faith its disclosure obligations.63 59  Taylor Judgement, para. 196. 60  Ibid. para. 197; see conclusion of this chapter for an analysis of relocation process. 61  Norman Decision on Prosecution Request, p. 3. 62  Ibid. 63  Ibid.

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4.2.1 Duty to Testify and Speak the Truth Rule 90(B) provides that every adult witness shall, before giving evidence, make one of the following solemn declarations: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.” Or “I solemnly swear on the [insert holy book] that I will speak the truth, the whole truth and nothing but the truth.” A child shall be permitted to testify if the Chamber is of the opinion that he is sufficiently mature to be able to report the facts of which he had knowledge. That he understands the duty to tell the truth, and is not subject to undue influence. However, he shall not be compelled to testify by solemn declaration.64 This section shall examine the following: i) various modes of testifying; ii) how the Judges assess witness credibility; and iii) factors that may have affected correct assessment of witness evidence. 4.2.1.1 Mode of Testifying Pursuant to Rule 90(F) (i) the Judges exercise control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth. 4.2.1.1.1 Live-Testimony Although not in rigorous terms the Rules clearly reflect a preference for witnesses to give evidence directly before the Court in accordance with Rules 90(A) and 85(D).65 The Judges emphasized in Norman that given the prominence in the presentation of evidence at international criminal trials, consistent with the letter and spirit of the prescribed rules of the principle of orality, meaning that the ascertainment of the truth depends primarily upon witnesses being heard at trial in the presence of the accused.66 However, this is not completely the case as witnesses can provide testimony by other means as seen below. In Taylor it was held that when evaluating the credibility of witnesses who gave evidence viva voce, the Trial Chamber has taken into account a variety of factors, including their demeanor, conduct and character (where possible). Their knowledge of the facts to which they testified, their proximity to the 64  Rule 90(C). 65  Prosecutor v. Taylor, Decision on Prosecution Motion To Allow Witnesses To Give Testimony By Video-Link, SCSL-03-1-PT, 30 March 2007, para. 22 (hereinafter, Taylor Decision on Video Testimony). 66  Prosecutor v. Norman et al., Decision on Prosecution Request for Order to Defence Pursuant to Rule 73ter(B) to Disclose Written Witness Statements, SCSL-04-16 21 February 2006, paras. 10 & 12 (hereinafter, Norman Decision to disclose written witness statements).

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events described, the plausibility and clarity of their testimony, their impartiality, the lapse of time between the events and the testimony, their possible involvement in the events and the risk of self-incrimination, inconsistencies in their testimony and their ability to explain such inconsistencies, any motivations to lie, and their relationship with the Accused.67 4.2.1.1.2 Video-link/Deposition Rule 85(D) provides that evidence may be given in court or via such communications media as the Judges may order. The onus is on the party applying for an order under Rule 85(D) to give evidence by video-link to establish to the satisfaction of the Judges that the witness concerned is unable to give evidence directly in court. Any order made by the Judges in the exercise of its discretion under Rule 85(D) would, as a matter of course, take into account the interests of justice. Applications made under the Rule would be considered on a caseby-case basis, taking into account the particular circumstances of the witness or witnesses concerned. The fact that even though Rule 85(D) does not contain a condition such as interest of justice, a Judge will not ignore such a fundamental principle of law when considering an application to give evidence by videolink and any order made by the Chamber in the exercise of its discretion under the Rule would as a matter of course take into account the interests of justice.68 In Taylor the Judges ruled that before any video-link testimony is heard one of the arrangements is for a courtroom officer to be present at all times during testimony in order to ensure that the testimony is given freely and voluntarily, to identify the witness and explain the nature of the proceedings and the obligation to speak the truth. He/she shall inform the witness that she is liable to prosecution for perjury in case of false testimony, shall administer the taking of the oath and shall keep the Judges informed at all times of the conditions at the location.69 Finally, Rule 71 empowers Judges to order that a deposition be taken for use at trial but only in ‘exceptional circumstances and in the interests of justice. The conjunctive conditions of exceptional circumstances and interests of Justice indicate that this method of adducing evidence is not generally available to a party wishing to present evidence.70

67  Taylor Judgement, para. 165. 68  Taylor Decision on Video Testimony, paras. 25–26. 69  Prosecutor v. Taylor Decision on Public Prosecution Motion to Allow Witness TF1-303 to give Testimony by Video-Link, SCSL-03-1-T, 18 September 2008 (hereinafter, Taylor Decision to give testimony by video-link). 70  Taylor Decision on Video Testimony, para. 23.

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4.2.1.1.3 Written Statements/Transcripts Rule 92 bis is different to the equivalent ICTY/ICTR Rules. It provides that in addition to the provisions of Rule 92ter, a Chamber may, in lieu of oral testimony, admit as evidence in whole or in part, information including written statements and transcripts, that do not go to proof of the acts and conduct of the accused. The information submitted may be received in evidence if, in the view of the Judges, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.71 The effect of the Rule was affirmed in Norman as to permit the reception of information assertions of fact (but not opinion) made in documents or electronic communications if such facts are relevant and their reliability is susceptible of confirmation. This phraseology was chosen to make clear that proof of reliability is not a condition of admission all that is required is that the information should be capable of corroboration in due course.72 The Appeals Chamber in Taylor upheld a decision of the Trial Chamber, confirming that by its express terms, Rule 92bis applies to information tendered “in lieu of oral testimony”.73 The Chamber denied a motion holding that being in effect a document tendered by the Prosecution in lieu of oral testimony should have been tendered under Rule 92bis and is not admissible under Rule 89(C) in the absence of a witness competent to give evidence in relation to that document.74 Any information that does not go to proof of the acts and conduct of the accused not tendered through a witness, should be submitted under Rule 92bis if it is sought to be admitted in lieu of oral testimony. Rule 92bis exclusively controls the admission of a document submitted in lieu of oral testimony and that such document must be channelled through a witness in order to be admissible under Rule 89(C).75 Furthermore, pursuant to Rule 92quater in relation to deceased persons two cumulative conditions need to be satisfied, namely the unavailability of the author of the transcript or written statement and the reliability of the evidence contained therein.76 In considering whether the evidence contained in 71  Rule 92bis(A)–(B). 72  Prosecutor v. Norman et al., Fofana-Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence’, SCSL-2004-14-AR73, 16 May 2005, para. 26. 73  Prosecutor v. Taylor, Decision on ‘Prosecution Notice of Appeal and Submissions Concerning the Decision Regarding the Tender of Documents’ SCSL-03-01-AR73-721, 6 February 2009 para. 40. 74  Ibid. 75  Ibid. paras. 33–34. 76  Prosecutor v. Taylor Decision on Public with Confidential Annexes C to E Prosecution Motion for Admission of Prior Trial Transcripts of Witnesses TF1-021 and TF1-083 ­pursuant

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the transcripts is reliable, Taylor Judges cited ICTY jurisprudence in Prlic considering the following indicia of reliability, namely: (i) the fact that the statement was made under oath, (ii) that it was subject to cross-examination and; (iii) that it has been corroborated by other evidence.77 The Judges agreed that the various factors of reliability should be considered collectively when determining the ultimate reliability of a statement. The absence of one or more of these factors does not automatically lead to the exclusion of this evidence as it may be compensated for by the existence of other factors. They stressed that where such evidence is admitted, the absence of one or more indicia of reliability will be taken into consideration when attributing the ultimate weight to that evidence.78 The nature of information contained in the transcripts sought to be tendered, in evidence by the Prosecution should be sufficiently proximate to the accused. Its admission in the absence of an opportunity to cross-examine the makers of the statements would unfairly prejudice the accused. It is therefore in the interests of justice to afford the accused such an opportunity.79 In Taylor, the Judges ruled that the prior transcripts of two witnesses, being sworn, cross-examined, open-court testimonies of deceased witnesses, submitted as partially corroborated proof of crimes relevant to the Indictment and which do not go to the acts and conduct of the Accused, wholly met the criteria for admissibility under Rules 89(C) and 92quater. Furthermore, the Judges found that their admission would not prejudice the accused or bring the administration of justice into serious disrepute and that they may, therefore, be admitted in evidence pursuant to those Rules.80 4.2.1.2 Credibility/Reliability The Rules favours a flexible approach to the issue of admissibility of evidence, leaving the issue of weight to be determined at the end of the trial

to Rule 92 Quater, SCSL-03-1-T, 5 February 2009, para. 17 (hereinafter, Taylor Decision on Prior Trial Transcripts). 77  Ibid.; see Prosecutor v. Prlic et al., Decision on the Prosecution Motion for Admission of Evidence Pursuant to Rules 92bis and quater of the Rules, IT-04-74-T, 27 October 2006, paras. 8 & 10. 78  Ibid. 79  Prosecutor v. Taylor Decision on Prosecution Notice under Rule 92 bis for the Admission on Evidence related to inter alia Kenema District and on Prosecution Notice under Rule 92 bis, for the Admission of the Prior Testimony of TF1-036 into Evidence, SCSL-03-1-T 15 July 2008, p. 5 (hereinafter, Taylor Decision on Admission of Evidence). 80  Taylor Decision on Prior Trial Transcripts, para. 31.

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when a­ssessing probative value of the totality of evidence.81 Rule 89(C) vests the Judges with discretionary power to admit any relevant evidence.82 Rule 95 states that no evidence shall be admitted if its admission would bring the administration of justice into serious disrepute. The threshold for the application of Rule 95 seems to be higher at the SCSL than at the ICTY/R given their clear preference for the admission rather than exclusion of evidence.83 In Brima the Judges found that the defence had not made out a case for the exclusion of evidence, let alone for the exclusion of the witness’s evidence in its entirety. Nor had anything been put before the court which would have justified the conclusion that the admission of the evidence would bring the administration of justice into serious disrepute pursuant to Rule 95. On the contrary the evidence in the Judge’s view was so clearly relevant that the judicial process would be brought into disrepute by excluding it.84 In Fofana, it was held that in assessing the credibility and reliability of oral witness testimony, the Chamber has considered factors such as: the internal consistency of the witness testimony, its consistency with other evidence in the case, any personal interest a witness may have that may influence his motivation to tell the truth, as well as observational criteria such as the witness demeanour conduct and character. The Judges also consider the witnesses knowledge of the facts on which they testify and the lapse of time between the events and the testimony. The fact that a witness gives evidence honestly is not in itself sufficient to establish the reliability of that evidence. The issue is not merely whether the evidence of a witness is honest; it is also whether the evidence is objectively reliable. The Tribunal may accept or reject the evidence of a witness in part or in whole and may find a witness to be credible and reliable about certain aspects of their testimony and not credible or

81  Prosecutor v. Norman et al., Fofana Appeal against Decision Refusing Bail, SCSL-0414-AR65, 11 March 2005, paras. 22–24 (hereinafter, Norman Appeal decision on Bail). 82  Prosecutor v. Norman et al., Decision on Prosecution’s Request to Admit into Evidence Certain Documents Pursuant to Rules 92bis and 89(C), SCSL-04-14-447, 14 July 2005, p.  3; Prosecutor v. Sesay et al., Ruling on Gbao Application to Exclude Evidence of Prosecution Witness Mr. Koker” SCSL-04-15-T 23 May 2005, para. 6 (Hereinafter, Sesay Ruling on Application of Evidence). 83  Karim Khan and Rodney Dixon, Archbold International criminal Courts: Practice, Procedure & Evidence (London Sweet & Maxwell 2005) p. 486. 84  Prosecutor v. Brima et al., Decision on Joint Defence Motion to Exclude All Evidence From Witness TF1-277 Pursuant to Rule 89(c) and or Rule 95, 24 May 2005, para. 24 (hereinafter, Brima Decision to Exclude all Witness Evidence).

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reliable with respect to others.85 The Appeals Chamber in Norman held evidence is admissible once it is shown to be relevant, the question of its reliability is determined thereafter, and is not a condition for its admission.86 Following, to determine reliability and credibility issues several methods have been used. This will be analysed below. 4.2.1.2.1 Cross-examination While the Statute confers a right to examine witnesses or to have them examined pursuant to Rule 85(B), this right does not extend to an outright ‘face to face’ confrontation between the accused and every individual witness. However, it does not follow that a witness need not be present in the courtroom.87 Collaterality is an operative doctrine at the Court. The essence of the principle is that questions in cross-examination designed solely at discrediting a witness or impeaching the witness’ credibility are essentially collateral in nature if they do not touch on an issue which the Court is necessarily required to determine such as an element of the offence. The typical legal situation calling for the application of the so-called collateral-fact rule is where an effort is made to discredit a witness in a manner unrelated to the subject matter of the offence. The law is that under cross-examination, in the context of the application of the collateral-fact rule, there is, generally, no opportunity to call evidence to refute answers which have been given by a witness, after asking further questions. Exceptionally, the defence may be afforded the opportunity, where proper foundation has been laid, to call evidence where a prior-inconsistent statement is alleged to contradict a witness’s testimony.88 Whether an issue in a trial is collateral or central is not determined by reference to some judicial crystal ball. It depends upon the nature of the charges, the factual allegations in support, the definition of the issues in controversy, and the totality of the circumstances of the case. In Norman the Judges were of the opinion that some clarifications from the OTP investigators will provide an evidentiary basis upon which a certain witness can be judged on the grounds that the witness credibility is central to the proof of the Prosecution’s case in 85  Prosecutor v. Fofana, Judgement, SCSL-04-14-T, 2 August 2007 paras. 256–258 (hereinafter, Fofana Judgement). 86  Norman Appeal Decision on Bail, para. 24; Brima Decision to Exclude all Witness Evidence, para. 15. 87  Taylor Decision on Video Testimony, para. 25. 88  Prosecutor v. Norman et al., Ruling on Defence Oral Application to call OTP Investigators who took down in Writing Statements of Prosecution Witness TF2-021, SCSL-04-16, 7 December 2004, para. 20 (hereinafter, Norman Ruling to Call OTP Investigators).

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respect of the matters to which he has testified. Having regard to the nature of his testimony, some explanation as to why he repudiated significant portions of his out-of-court statements may assist the Court in accurately evaluating his credibility. It was certainly within the realm of probability that the OTP investigator’s evidence might remove any doubt that might be cast on the witness’ credibility, and emanating from his unequivocal repudiation in court of certain significant portions of the said out-of-court statements to them.89 The Judges exercise their discretion on a case-by-case basis and examine each application according to its merits having regard to the nature of the crimes, the nature of the pleadings, the definition of the issues, and the particular facts and circumstances of the case. It is important to mention that in this peculiar and almost extreme case, the Judges were confronted with the testimony and out-of-court statements of a prosecution witness. A child witness, who, without equivocation or hesitation, repudiated significant and highly contentious portions of his statements to the investigators bearing in mind of course, that the testimonies of this category of witnesses should, either as a matter of law or practice, be examined with some degree of judicial vigilance in view of their particular susceptibilities.90 In Taylor, the Judges ordered that prior trial transcripts and related exhibits relating to the testimony of certain witnesses should be admitted into evidence pursuant to Rule 92bis provided that the Prosecution shall make the said witnesses available for cross-­examination by the defence.91 From the plain and literal interpretation of Rule 92bis information going to prove the acts and conduct of the accused is inadmissible. The Chamber considers whether cross-examination should be permitted in relation to any admissible information.92 The proximity to the accused of the acts and conduct which are described in the written statement is relevant to the determination of whether cross-examination should be ordered.93 A distinction has been made between acts and conduct of the accused that is inadmissible and information that is proximate enough to the accused so as to

89  Ibid. para. 21. 90  Ibid. para. 23. 91  Taylor Decision on Admission of Evidence, p. 6. 92  Prosecutor v. Sesay et al., Decision on defence Application for the Admission of the Witness Statement of DIS-129 under Rule 92bis or in the Alternative under Rule 92ter, SCSL-04-15-T, 12 March 2008 p. 3. 93  Prosecutor v. Sesay et al., Decision on Sesay Defence Motion and Three Sesay Defence Applications to Admit 23 Witness Statements under Rule 92bis, SCSL-04-15-T, 15 May 2008, para. 37 (hereinafter, Sesay Decision to Admit 23 Witness Statements).

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require cross-examination.94 The Judges in Sesay found that the vast majority of the information contained in a witness statement annexed to a motion and three applications which had already been testified to by viva-voce witnesses who had been cross-examined by the prosecution, was an important consideration for the Chamber in determining whether to order cross-examination on any of the otherwise admissible witness statements.95 The Judges thus considered that the admission of 23 repetitive statements would result in duplicating evidence and hence delaying the proceedings by unnecessarily increasing the size of the case. This may be true in the case of statements that contain information sufficiently proximate to the accused so as to require cross-examination, but which are unduly duplicative of testimony already heard. The Judges were of the view that certain of the witness statements contained admissible information, which they did not consider to be unduly repetitive. Some of the witness statements listed in provided them with some new information, which was admissible under Rule 92bis.96 Finally, a Trial Chamber has the discretion to allow counsel to re-open crossexamination where the interests of justice and the fairness of trial proceedings so require, however counsel must show exceptional circumstances justifying the exercise of its discretion.97 4.2.1.2.2 Prior Statements/Inconsistent Statements A prior statement may be tendered in evidence as an exhibit, after an inconsistency with the trial testimony has been established.98 Again, prior-inconsistent statements are generally admissible in international criminal trials, as a means to impeach the credibility of a witness.99 Prior-inconsistent statements can be admitted pursuant to Rule 89(C), the witness may be asked to confirm that he/she made a statement and may be cross-examined on the contents thereof in general terms without being shown the statement. Where the prior statement is in writing the witness should be shown the statement before questions 94  Prosecutor v. Sesay et al., Decision on prosecution Notice under Rule 92bis and 89 to Admit the Statement of TF1-150, SCSL-04-15-T, 20 July 2006, para. 30. 95  Sesay Decision to admit 23 Witness Statements, para. 40. 96  Ibid. paras. 46 & 48–49. 97  Prosecutor v. Sesay et al., Ruling on the Request to Re-Open the Cross-Examination of Witness TF1-012, SCSL-04-15-T, 5 April 2005, para. 9. 98  Prosecutor v. Norman et al., Decision on Disclosure of Witness Statements and CrossExamination, SCSL-04–14-PT, 16 July 2004, paras. 20 (hereinafter, Norman Decision on Witness Statements). 99  Norman Decision on Witness Statements, para. 18.

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concerning alleged inconsistencies can be asked to the witness and if the statement is proved the statement is admitted into the records as evidence.100 The following principles have been set out as regards prior inconsistentstatements: a witness may be cross-examined as to previous statements made by him/her in writing or reduced into writing or recorded on audio tape or video tape or otherwise, relative to the subject matter of the case in circumstances where an inconsistency has emerged during the course of viva voce testimony between a prior statement and the testimony.101 In conducting cross-examination and inconsistencies between viva-voce testimony and a previous statement, the witness should first be asked whether or not he/she has made the statement being referred to. The circumstances of making the statement, sufficient to designate the situation, must be put to the witness when asking this question. Should the witness disclaim making the statement, evidence may be provided in support of the allegation that he/she did in fact make it. A witness may be cross-examined as to previous statements made by him/her relative to the subject matter of the case without the statement being shown to him/her. However, where it is intended to contradict such witness with a statement, his/her attention must, before the contradictory proof can be given, be directed to those parts of the statement alleged to be contradictory. The Judges may direct that the portion of the witness statement that is the subject of cross-examination and alleged contradiction with a viva-voce testimony be admitted into a court record and marked as an exhibit.102 Where it is apparent from the excerpts of a witness testimony, that there are clear inconsistencies between his testimony in court and some of his statements made during proofing sessions which inconsistencies could affect the witness’ credibility, to benefit of the accused accordingly the prosecution is obliged under Rule 68 to disclose the material or information containing these inconsistencies.103 In underlining the prosecution’s obligations to disclose exculpatory material, the Court has previously held that Rule 68 requires the prosecution to disclose continuously exculpatory evidence. That is, evidence that in any way leads to suggest the innocence of the accused, or evidence that in any way tends to mitigate the guilt of the accused or evidence favourable to

100  Taylor Decision on Admission of Evidence, pp. 8–9. 101  Norman Decision on Witness Statements, para. 21. 102  Ibid. 103  Prosecutor v. Taylor Decision on Confidential Defence Application for Disclosure of Documents in the Custody of the Prosecution pursuant to Rule 66 and Rule 68, SCSL-031-T, 18 February 2009, para. 11.

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the accused that may affect the credibility of the prosecution evidence.104 Also in Brima it has been held that, questions posed with respect to preparatory meetings between the prosecution and witnesses could relate to the witness’s credibility. Such questions, while permissible, must in the absence of any substantiated allegation of misconduct be limited to the number of such meetings, the dates of the meetings, and their duration.105 Inconsistencies need not be fatal to the testimony of a witness, provided that they are not material. However, it is also the law that one of the key factors in assessing credibility is consideration of other witness accounts or other evidence submitted in the case and not only that of “strength under cross-examination”.106 A Chamber can properly look behind the scenes and inquire whether a statement taken by investigators from witnesses was properly taken down in writing and is an accurate portrayal of the facts as stated. It is on the prosecution that the burden of producing the investigators as a witness rest.107 This is an issue that has been prevalent at the SCSL, witness testimony frequently diverging from statements that witnesses have provided to prosecutors and when witnesses are confronted with these inconsistencies they frequently blame it on those who participated in the statement taking.108 In Norman upon Defence’s request the judges ordered the Prosecutor to call as witness the OTP investigators who took down in writing statements of a prosecution witness, which were allegedly inconsistent with the witness’s oral testimony. The defence asserted that the appearance of the investigators who took down the statements in question was important to enable the Chamber to adequately and effectively: i) test the credibility of the said witness, ii) assess the veracity of the statements given by the said witness to the OTP investigators and iii) determine what weight to attach to the witness testimony.109 Finally, it is not expected that witness oral evidence will be identical to evidence given in prior statements. The judges have stated that it is foreseeable that witnesses by the very nature of oral testimony will expand on matters mentioned in their witness statements and respond more comprehensively to questions asked 104  Prosecutor v. Sesay et al., Decision on Sesay Motion Seeking Disclosure of the relationship Between Governmental Agencies of the United States of America and of the Office of the Prosecutor, SCSL-04-15-T-363, 2 May 2005, para. 35. 105  Prosecutor v. Brima et al., Decision on Objection to Question Put by Defence in CrossExamination of Witness TF1-227, SCSL-04-16-T, 15 June 2005, paras. 18–20. 106  Norman Ruling to Call OTP Investigators, para. 19. 107  Ibid. paras. 17–18. 108  Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 78. 109  Norman Ruling to Call OTP Investigators para. 3.

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at trial. They hold that a witness may be asked questions at trial which were not asked before. Also many witnesses remember in court details previously forgotten.110 4.2.1.2.3 Corroboration The Judges have held that corroboration may enhance the probative value of a piece of evidence when evaluating the credibility of all witnesses who have testified to particular facts.111 Corroboration of evidence is not a legal requirement, but rather concerns the weight to be attached to the evidence. As a matter of law, the Judges may convict an accused on the basis of a single witness although such evidence must be assessed with the appropriate caution and care must be taken to guard against the exercise of an underlying motive on the part of the witness.112 In instances where only one witness has given evidence on a material fact, it does not as a matter of law require corroboration. It has been the practice of the SCSL to examine such evidence very carefully and in light of the overall evidence adduced, before placing reliance upon it.113 Also, proof of reliability is not a condition for admitting “information” under Rule 92bis. A requirement under this Rule of such information being capable of corroboration in due course leaves open the possibility for the Chamber to determine the reliability issue at the end of the trial in light of all evidence presented in the case and decide whether the information is indeed corroborated by other evidence presented at trial, and what weight, if any, should the Chamber attach to it. The Chamber will take into account the nature and source of the information when it assesses the probative value and weight to be given to the evidence in light of the totality of the evidence before it.114 In Taylor, the defence asserted that the evidence of each of some witnesses could not be corroborated by the evidence of the other as neither transcript had yet been admitted in evidence and each testimony required separate and independent corroboration. It argued that a deceased witness’s statement or transcript should have been corroborated by evidence already adduced at trial and not by evidence of another deceased witness sought to introduce under Rule 92quater. The defence argued that there were “substantial differences” 110  Fofana Judgement, para. 263. 111  Sesay Decision to Admit 23 Witness Statements para. 45. 112  Fofana Appeal Judgement, para. 199. 113  Fofana Judgement, para. 265. 114  Prosecutor v. Norman et al., Decision on Norman Request to Admit Documents in Lieu of the Testimony of Abdul-One Mohammed pursuant to Rules 89(C) and 92bis, SCSL-04-14-T 15 September 2006 p. 5.

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between the accounts of the deceased witnesses arguing that the evidence was inadequately corroborated by other witnesses whose evidence was before the Chamber.115 The Judges ruled that similar to the other indicia of reliability, corroboration is a relevant factor to be considered in determining reliability, but not a necessary pre-requisite for the admission of evidence pursuant to Rule 92quater.116 The prior transcripts of two witnesses were corroborated to the extent that they were generally consistent with reference to major events and there was no valid reason in law or in fact why the evidence of one could not corroborate that of the other or vice versa. Any inconsistencies in the evidence did not preclude its admissibility but merely added to the weight to be accorded to it.117 4.2.1.2.4 Hearsay There is no bar to the admission of hearsay-evidence at the SCSL.118 Rule 89(C) is not restrictive in its provisions it allows the Judges a broad discretion to admit hearsay evidence.119 The Judges ruled in Brima that it is well settled in the practice of international tribunals that hearsay-evidence is admissible.120 As a matter of law it is permissible to base a conviction on circumstantial evidence or hearsay-evidence because hearsay-evidence is admissible as substantive evidence in order to prove the truth of its contents, establishing the reliability of hearsay-evidence is of paramount importance.121 In Fofana, it was held that although hearsay is admitted during the course of trial, the Chamber is aware that hearsay-evidence has inherent deficiencies. It cannot be tested by cross-examination, its reliability may be affected by compounded errors of perception and memory and its source is not subject to solemn declaration. Hearsay-evidence is not necessarily without probative value and the Judges will consider any indicia of reliability before according appropriate weight to it.122 Besides, the probative value of hearsay-evidence is something to be considered by the Judges at the end of the trial when weighing and evaluating

115  Taylor Decision on Prior Trial Transcripts, para. 25. 116  Ibid. para. 26. 117  Ibid. 118  Norman Appeal Decision on Bail, para. 29. 119  Ibid. para. 22; see also Karim Khan and Rodney Dixon, Archbold International criminal Courts: Practice, Procedure & Evidence (London Sweet & Maxwell 2005) p. 454. 120  Brima Decision to Exclude all Witness Evidence, para. 12. 121  Ibid. para. 198. 122  Fofana Judgement, para. 264.

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the evidence as a whole in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant witness.123 4.2.1.3

Barriers to Understanding and Assessing Witness Testimony at the SCSL The SCSL has been criticised for not addressing major challenges it faced in its duty to assess witness credibility. According to Tim Kelsall, in its assessment of evidence the SCSL failed to find convincing means for assessing the credibility of witnesses some of whom, deployed culturally grounded strategies of concealment in court. He argues that the SCSL failed to adjust in the local culture in which it worked with the failure of raising serious questions about the quality of the convictions for instance in the CDF case.124 Likewise, Combs writes that the SCSL has operated in a fact-finding fog of inconsistent, vague and sometimes incoherent testimony that leaves it unable to say with any measure of certainty ‘who did what to whom’.125 She writes that in reviewing the transcripts of all of the SCSL cases, she found that on average, approximately 50 percent of the witnesses testified seriously inconsistently with their past statements.126 For Combs, in trying to apply western style criminal procedures the Judges have failed to appreciate the potential impact of testimonial deficiencies whatever their causes.127 For instance in examining the CDF case Combs argues that the Judges adopt a cavalier attitude towards testimonial deficiencies and as a consequence are frequently content to base their convictions on deeply flawed testimony.128 In that case the Judges were of the view that the inconsistencies in testimony that they referred to as minor does not discredit testimony. They based these minor inconsistencies in testimony on the fact that the events in question happened several years ago and due to the nature of memory some details will be confused and some will be forgotten.129 123  Brima Decision to Exclude all Witness Evidence, para. 15. 124  Tim Kelsall, Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) p. 3. 125  Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 260. 126  Ibid. p. 251; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 118–119. 127  Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 21 & 189. 128  Ibid. p. 189. 129  Fofana Judgement paras. 262–263.

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Notwithstanding the fact that recollection of the witness memory during testimony is an important factor to consider and with the passage of time the witness may have forgotten certain details of events. The Judges in this case failed to assert that certain factors might have contributed to these inconsistencies.130 One major challenge for the Judges was the unfamiliarity with cultural and linguistic features of the Sierra Leonean community. Cultural differences between the witnesses and western court personnel proved an additional impediment to accurate fact-finding. Indeed, an inability to answer certain questions may be driven less by educational factors than by cultural factors.131 For instance in Sesay a certain witness who had initially testified that a certain rebel returned after a week, later suggested that the rebel returned after several weeks. When counsel pointed out the inconsistency the witness replied that ‘we are native people, that which is not up to a month, we call it week.’132 Whether this was an exaggeration of cultural difference is a question to be asked. In my understanding, a week is usually seven days, which I think was the understanding of the Judges. The question now is did the rebel return after a week or within a month, if several weeks could be quantified as a week, then facts as to the date and time the rebel returned have not been ascertained. Either this was truly an honest cultural difference as to how the locals view a week or the witness exaggerated or lied when questioned. In addition, mystical beliefs, superstitions, magic and taboos played a part in the Sesay, Brima and Fofana et al. trials respectively, where witnesses seemed evasive and did not answer questions because of their beliefs.133 These cultural taboos can hinder witnesses from testifying clearly and directly about sexual matters or other delicate issues. These taboos inhibit interpreters so that factfinders fail to receive a clear picture of events when witnesses have testified

130  See Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 251–252; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 21–23 & 36; Tim Kelsall, Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) pp. 17 & 37. 131  Ibid. p. 252; Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) p. 78. 132  See Sesay et al., SCSL-04-15-T, Transcript, at 70 (Feb. 3, 2005). 133  See Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 89–92; Tim Kelsall Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) p. 22.

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clearly.134 Another issue that created a barrier in properly assessing witness testimony at the SCSL was misinterpretation i.e. inaccurate language interpretation of witness testimony. Mistakes in translations may impair the Judges ability to test witness veracity. Witnesses have frequently blamed inconsistencies in their statements on those who participated in the statement taking.135 Sometimes difficulty in interpretation may have impaired the Judges to assess the demeanor of the witness. For instance in Fofana the Judges were unable to deal with an interpretation challenge and abandoned verbatim interpretation. They capitulated and ordered the interpreter to summarize the witness testimony rather than translating it verbatim.136 It is worth mentioning however those misinterpretations were sometimes sported out due to the fact that the SCSL had a Judge and defence counsels from Sierra Leone.137 4.2.2 Duty to Follow Directions of the SCSL 4.2.2.1 Subpoena Rule 54 is the applicable statutory provision for granting subpoenas. The determination of whether a subpoena should be issued is in the discretion of the Judges.138 The Court will grant a subpoena if it is necessary to bring to court an unwilling but important witness. The Judges are satisfied if the applicant shows that the subpoena is likely to elicit evidence material to an issue in the case, which cannot be obtained without judicial intervention. The key question is whether the effect that the subpoena will have is necessary to try the case fairly.139 In Norman the Appeals Chamber held that, the Trial Chamber wrongly determined the novel question before the SCSL regarding the applicable standard for the issuance of a requested subpoena pursuant to Rule 54. It may have unduly impinged upon the right of the First and Second Accused to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. Thus, ruling that a resolution 134  Ibid. pp. 74–75. 135  Ibid. pp. 72–73 & 78–79; See also Tim Kelsall, Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) pp. 24–25. 136  Ibid. p. 73; see Fofana et al case (CDF) Transcript March 10, 2005 at 48–49. 137  Ibid. 138  Prosecutor v. Norman et al., Decision on Interlocutrory Appeals against Trial Chamber Decision Refusing to Subpoena the President of Sierra Loene, SCSL-04-16-T-688, 11 September 2006, para. 8 (hereinafter, Norman Decision on Interlocutory Appeals). 139  Ibid. para. 9; Prosecution v. Sesay et al., Written Reasoned Decision on Motion for Issuance of a Subpoena to H. E. DR. Ahmad Tejan Kabbah, Former President of the Republic of Sierra Leone, SCSL-04-15-T, 30 June 2008, para. 17.

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by them was necessary to provide an appropriate judicial exposition on the criteria for the issuance of a subpoena for pre-testimony interview and testimony at trial.140 It is incumbent on the party seeking to compel a reluctant witness to testify to satisfy the Chamber that a subpoena should be issued. The Judges are entitled to look carefully at the proposed evidence and may decline to issue a subpoena if the proposed evidence fails to address a sufficiently material issue. In doing so, the Judges do not conduct a ‘premature evaluation’ of the probative value of the evidence, rather they assess whether issuing a subpoena to compel a reluctant witness to testify may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.141 In order to satisfy Rule 54, the Judges consider whether the applicant demonstrates a legitimate forensic purpose by showing a reasonable basis for the belief that the information to be provided by a prospective witness is likely to be of material assistance to the applicant’s case in relation to clearly identified issues relevant to the trial.142 Thus the following factors may be relevant such as: whether the information will be of material assistance to the applicant’s case will largely depend upon the position held by the prospective witness in relation to the events in question. Any relationship he may have or have had with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events or to learn of those events and any statements made by him to the applicant or to others in relation to those events.143 In Taylor the Judges ordered the subpoena of Naomi Campbell and requested the States in which she resides to assist in the enforcement of the order.144 The Prosecution had submitted that the anticipated evidence of Campbell was highly probative and material to indictment. As it was direct evidence of the accused possession of rough diamonds from a witness unrelated to the Sierra Leone or Liberian conflicts.145 The prosecution proved that the ‘legitimate forensic purpose’ requirement under Rule 54 had been satisfied.146 They established that Campbell was a very important witness in the case, she was unwilling to testify and they needed judicial inter140  Prosecution v. Norman et al., Decision on Motion by the First and Second Accused for leave to Appeal the Chamber’s Decision on their Motions for the Issuance of a Subpoena to the President of the Republic of Sierra Leone, SCSL-04-14-T 28 June 2006, para. 13. 141  Norman Decision on Interlocutory Appeals, para. 21. 142  Ibid. para. 10. 143  Ibid. para. 25. 144  Prosecutor v. Taylor, Decision on Prosecution Motion for the Issuance of a Subpoena to Noami Campbell, SCSL-03-1-T, 30 June 2010 pp. 6–7. 145  Ibid. p. 2. 146  Ibid., see p. 6.

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vention in the form of subpoena to compel her to provide testimony. As the actual recipient of the Accused’ gift of diamonds, she was clearly in a position to provide material evidence about this event. Also, the Prosecution’s repeated efforts to interview Campbell about the event had been unsuccessful and she had given public statements that she does not want to be involved in the case.147 To ensure that the subpoena is served and executed the Court relies on State cooperation. Rule 8(C) provides that ‘The Special Court may invite third States not party to the Agreement to provide assistance on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. In the Taylor case UNSC Resolution 1688 (2006) may be applicable in the providing an “appropriate basis” for assistance. Paragraph 4 encourages all States to ensure that any evidence or witnesses are, upon the request of the Special Court, promptly made available to the Special Court for the trial of Charles Taylor. 4.2.2.2 Answer Questions and Provide Testimony The Judges may compel a witness to answer questions, however testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony under solemn declaration.148 Certain witnesses have refused to answer questions based on their status as a privilege-witness. Under Rule 70(B), the prosecution can assure third parties that confidential information provided by them will not be disclosed without their consent. In Brima, the issue was whether a witness who had provided information to the Prosecution pursuant to Rule 70(B) could be compelled to disclose the identity of sources. The Judges unanimously concluded that he could not be so compelled by virtue of Rule 70(D).149 The Appeals Chamber decided against the Impugned Decision in which a majority of the Trial Chamber declined to issue an order guaranteeing a certain Witness TF1-150 (a UN human rights officer), would not be compelled to answer any questions in cross-examination identifying his confidential sources.150 The Appeals Chamber based its decision on two grounds raised from the Trial Chamber’s Decision: firstly; the question of the applicability of Rules 70(B) and (D) to the Prosecution request and secondly, the balancing of 147  Ibid. paras. 3 & 14–18. 148  Rule 90(E). 149  Prosecutor v. Brima et al., Decision on Prosecution Appeal against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality, SCSL-04-16-AR73, 26 May 2006. 150  Ibid. paras. 1–2.

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the public interest in protecting confidentiality in the work of human rights officers and the public interest in the fair trial of an accused.151 With regards to the first ground the Chamber raised two issues as to the applicability of Rule 70; a) did the Trial Chamber err in finding that Rule 70 does not apply because the Prosecution failed to prove that it was in possession of the initial information; b), did the Trial Chamber err in finding that Rule 70(D) did not apply because Witness TFI-150 was not the “originator of the initial information” or “the person or representative of the entity providing the initial information”?152 The Appeals Chamber stated that the guiding characteristic of the information provided under Rule 70 is that it was provided on confidential basis making the consent of the person who provided the information on confidential basis a pre-condition to disclosure in paragraph (B); makes additional evidence received from that person protected in paragraph (C); and, makes that person, if called as a witness, not compellable to answer any question that he may decline to answer on the basis of confidentiality in paragraph (D).153 The Appeals Chamber ruled that the Trial Chamber erred in finding that Rule 70 did not apply because the Prosecution failed to show that it was in possession of the initial information and that the authoritative and historical exposition of the purpose of Rule 70 of the ICTY Rules on which the Rules of the SCSL are based, should not have been dismissed as not pertinent to a case in which the main issue was Rule 70’s applicability.154 The Appeals Chamber held that the Trial Chamber erred in concluding that Rule 70(D) could not apply because the witness was not the “originator of the initial information” or “the person or representative of the entity providing the initial information” and in its finding that the provisions of Rule 70 upon which the Prosecution sought to rely were not applicable to the witness or his testimony.155 Rule 70(D) grants the person providing or the representative of the entity providing initial information (the provider) protection from compellability in regard to answering questions and does not require that the witness is the “originator of the initial information”. As to the second ground raised by the Trial Chamber Decision, the Appeals Chamber considered that the special interests of human rights officers who have provided confidential information to the Prosecutor are adequately covered by Rule 70, which can be interpreted as protecting confidential 151  Ibid. para. 16. 152  Ibid. para. 18. 153  Ibid. para. 20. 154  Ibid. paras. 25–26. 155  Ibid. para. 31.

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information from disclosure and protecting the provider from certain aspects of compellability. It held that Rule 70 applies to Witness TF1-150 or his testimony and that the request of the Prosecution should have been granted.156 Significantly, it has been held that there is a distinction in law between a privilege that is an exemption from disclosing confidential information but not from providing other evidence or participating in the trial process, and an immunity, which is an exemption from giving any evidence at all or otherwise participating in the trial. A privilege concerns the right of a party to refuse to disclose certain confidential communications to a Tribunal or other person, not the right to refuse to attend before that tribunal and to give any evidence whatsoever.157 Immunity relates to the compellability of a witness and is determined by reference to the status of the witness. Privilege relates to the admissibility of evidence given by the compellable witness and is determined by reference to the confidential character of the evidence. In Norman the judges upheld that once a witness has entered the witness box the witness must answer all questions put unless excused or unless the refusal to answer is based upon a privilege conferred by law. Competence and compellability therefore attach to the witness and not to the evidence the witness may give.158 Hence, a witness enjoys because of his status as a UN official an immunity and not a privilege under Article V Section 18(A) of the Convention on the Privileges and Immunities of the UN which provides for UN officials to be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.159 Furthermore the waiver of immunity has the effect of rendering the witness compellable. However, this waiver has no impact on the admissibility of subsequent evidence that the witness would give and hence has no effect upon any privilege attached to that evidence.160 Granting leave to appeal is particularly important because the witness, who refuses to obey the order of the majority of the Trial Chamber, may have been in jeopardy of being held in contempt.161 Also, the Judges granted a Prosecution’s confidential application for leave to be granted to the witness to testify without being compelled to answer questions 156  Ibid. paras. 32–36. 157  Prosecutor v. Norman et al., Decision on Prosecution Appeal against Confidential Decision on Defence Application Concerning Witness TF2-218, SCSL-04-14-AR73(B) 26 May 2006, para. 6. 158  Ibid. 159  Ibid. para. 7. 160  Ibid. para. 8; see Section 20 of Article V. 161  Ibid. para. 10.

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in cross-examination that the witness declined to answer on grounds of confidentiality pursuant to Rule 70(B) and (D). The question was whether the UN had waived the confidentiality invoked by the witness under Rule 70(D). The matter arose on 7 June 2005, in the course of the cross-examination of a UN witness in closed session. He was asked by Defence Counsel to identify the source for some of his statements. He explained that he had given an undertaking to protect this source’s identity, since the source was a person who might be open to reprisals if it became known that he/she had been assisting the UN. The witness made clear that he was taking this position both as a matter of conscience and because routine source-revelation would undermine his reporting work.162 The primary reason for the Trial Chamber’s decision in this case was that the confidentiality interest in the said information was waived by the Secretary General through a UN Letter and that the claim of privilege by Witness TF2-218 not to disclose the name of his informant was legally impermissible and that Witness TF2-218 should disclose the name of the informant in closed session.163 The witness maintained his refusal to answer, but did not appear to have been formally held in contempt. A dissent entered by Hon. Justice Itoe who like, the majority found Rule 70 inapplicable but decided that the confidentiality promised to the source outweighed the Defence need for the information. Unfortunately the dissent was not filed until 19 September 2005, more than three months later. The Appeal Chamber had already ruled that the practice of filing individual decisions long after they should have been appended to the decision of the Chamber is incorrect and should cease.164 Similarly with reference to journalists, in determining whether a certain witness may be compelled to name a person or persons alluded to in the course of his evidence the Judges have held that they must determine whether the witness should be compelled to answer or whether he enjoys a privilege by virtue of being a journalist and if the witness does enjoy journalistic privilege they must then consider the extent of that privilege and whether it may be over­ridden in the interests of justice in the case.165

162  Ibid. paras. 1–2. 163  Ibid. para. 5. 164  Ibid. para. 4. 165  Prosecutor v. Taylor, Decision on the Defence Motion for the Disclosure of the Identity of a Confidential ‘Source’ Raised During Cross-Examination of TF1-355, SCSL-03-1-T, 6 March 2009, paras. 22–33 (hereinafter, Taylor Decision for Disclosure of Confidential Source).

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4.3 Sanctions 4.3.1 Contempt Rule 77 sets out the regime to be followed in cases of contempt before the SCSL. The basis of the Rule is the inherent power of the court to deal with contempt before it.166 This inherent power subsists independently of the specific terms of Rule 77.167 In Margaret Brima it was held Rule 77 must be read in this context and the Rule is not intended to limit the SCSL inherent contempt of Court powers.168 The Appeals Chambers has held that all courts must possess the powers necessary to enable them to administer and deliver justice fairly and efficiently.169 Rule 77(A) provides in the exercise of its inherent power the Judges may punish for contempt any person who knowingly and willingly interferes with its administration of justice.170 It identifies and defines certain conducts relating to the offence of contempt of court throughout a defined though non-exhaustive list of acts.171 The mens rea requirement of knowingly and wilfully does apply to witness conduct under Rule 77.172 The Judges have affirmed ICTY jurisprudence that within the meaning of Rule 77 the requirement of mens rea includes both actual knowledge and wilful blindness but not mere negligence. This mens rea will apply to the general elements of contempt but also to the specific intent to interfere with the administration of justice required by Rule 77(A).173 An allegation of contempt must be credible enough to provide the Judges with reason to believe that a person may be in contempt.174 When the Judges 166  Magaret Brima Contempt Judgement, paras. 9–11. 167  Independent Counsel v. Brima Samura Judgement in Contempt Proceedings, SCSL-05-01, 26 October 2005, para. 16 (hereinafter, Brima Samura Contempt Judgement). 168  Margaret Brima et al. contempt Judgement, para. 12. 169  Brima Decision on Defence Appeal Pursuant to Rule 77(j), para. 2. 170  For a description of specific provisions of Rule 77(A) see Prosecutor v. Brima et al., Decision on Defence Appeal Motion pursuant to Rule 77(j) on both the Imposition of Interim Measures and an Order pursuant to Rule 77 (C)(iii), SCSL-04-16, 23 June 2005, paras. 26–27 (hereinafter, Brima Decision on Defence Appeals pursuant to Rule 77(j)). 171  Ibid. para. 26; Brima Samura Contempt Judgement, para. 16. 172  Brima Samura Contempt Judgement, para. 18. 173  Ibid. paras. 19 & 27. 174  Prosecutor v. Taylor, Decision on Public with Confidential Annexes A to E & Public Annes F Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone and Public Confidential Annexes A & B Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone, SCSL-03-1-T 25 Febraury 2011, para. 35.

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have reason to believe that a person may be in contempt of the Court it may: (i) deal with the matter summarily itself; (ii) refer the matter to the appropriate authorities of Sierra Leone; or (iii) direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings. If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter.175 Rule 77(E) provides that Parts IV to VIII of the RPE applicable to trial proceedings shall also be applicable throughout contempt proceedings. The purpose of these provisions is indeed to ensure that proceedings involving allegations of contempt before the SCSL are subjected to the same judicial guarantees and procedures. As they might become appropriate due to ancillary nature of contempt proceedings set for the crimes falling within the statutory competence of the court.176 The standard of proof required to establish the commission of an offence of contempt is that of proof beyond reasonable doubt.177 The conduct of the witness must therefore be such in the circumstances that it constituted beyond reasonable doubt contempt of the court as defined in Rule 77. All subjective and objective essential elements of the allegations contained in the charge as particularised must therefore be proved to that standard.178 Furthermore, the Judges may exercise their inherent power with regard to contempt cases to determine the appropriate sentence for the c­ ontemnors.179 They have the inherent power to impose a sentence other than a fine or imprisonment such as a conditional discharge. The Rules provide that, certain punishment be imposed by setting out a maximum penalty without however prescribing any minimum punishment.180 Rule 77(G) provides for the maximum penalty that may be imposed on a person found to be in contempt pursuant to Sub-Rule (C)(i) shall be a term of imprisonment not exceeding six months, or a fine not exceeding 2 million Leones, or both; and the maximum penalty pursuant to Sub-Rule (C)(iii) shall be a term of imprisonment for seven years or a fine not exceeding 2 million Leones, or both. Rule 101(B) is also applicable to contempt stating, the Judges shall take into consideration aggravating and mitigating circumstances as well as any penalty imposed by a court 175  Margaret Brima contempt judgement, para. 13. 176  Brima Samura Contempt Judgement, para. 17. 177  See Rule 87. 178  Brima samura Judgement, paras. 28–29. 179  Margaret Brima et al. contempt Judgement, para. 17. 180  Ibid. para. 19.

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of any State on the convicted person for the same act he/she has already been served. It is worth mentioning that certain individuals have been sanctioned for contempt for knowingly and wilfully interfering with the SCSL administration of justice for instance offering bribes to witnesses.181 4.3.2 False Testimony Pursuant to Rule 90(B) every witness before giving evidence shall make a solemn declaration to speak the truth. The law governing the offence of false testimony within the jurisdiction of the SCSL is embodied in two interrelated regimes of the Rules. Rule 91(A)–(D) and Rule 77(C) counsel to prosecute the matter.182 In accordance to Rule 91(A) a Chamber, on its own initiative or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so. Rule 91(B) provides that if a Chamber has strong grounds for believing that a witness may have knowingly and wilfully given false testimony, the Chamber may follow the procedure, as applicable, in Rule 77. The maximum penalty for false testimony under solemn declaration shall be a fine of 2 million Leones or a term of imprisonment of 2 years, or both. The payment of any fine imposed shall be made to the Registrar to be held in the separate account referred to in Rule 77(H) pursuant to Rule 91(C). In addition, Rule 91(D) provides that sub-rules (A) to (C) shall apply to a person who knowingly and wilfully makes a false statement in a written statement which the person knows, or has reason to know, may be used in evidence in proceedings before the Court. The Judges have held that a person commits the crime where he knowingly and wilfully makes a false statement in a written statement which he knows or has reason to know, may be used in evidence in proceedings before the court. Or where he knowingly and wilfully makes a false statement in a written statement which he knows or has reason to know, may be used in evidence in proceedings before the court. In Sesay it was held that in essence, a person commits the crime of false testimony if he makes an untrue statement under oath or solemn declaration knowingly and wilfully with intent to mislead. Simply, false testimony is testimony that is untrue. Ordinarily, and as a 181  See Prosecutor v. Eric Senessie, Judgement in Contempt Proceedings, SCSL-2011-01-T 12 June 2012 (hereinafter, Senessie Contempt Judgement); Independent Counsel v. Bangura et al.; Judgement in Contempt Proceedings, SCSL-2011-02-T, 25 September 2012, (hereinafter, Bangura Contempt Judgement). 182  Prosecutor v. Sesay et al., Decision on Sesay Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness TF1-366, SCSL-04-15-T, 25 July 2006, para. 23 (hereinafter, Sesay Decision to Investigate False Testimony).

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concept, false testimony is broader than perjury, which has a state of mind element. Unless criminalized, false testimony does not per se amount to a crime.183 Hence, the ingredients of false testimony are (i) making a false statement under oath or solemn declaration to tell the truth, (ii) knowing that the statement was false and (iii) wilfully making the statement with the intention to mislead the Court and cause harm. The first ingredient is the actus reus and the second and third ingredients constitute the mens rea.184 The crucial issue of the required standard of proof for a judicial inquiry prior to the initiation of proceedings under Rule 91(B) and Rule 77(C) is that Rule 91(B) clearly requires the Judges to apply, in the preliminary judicial inquiry, the standard, namely “strong grounds for believing”.185 The Judges have ruled that the test under Rule 91(B) is not satisfied by doubts as to the credibility or reliability of the statements. Reasonable doubts as to veracity, however, merely go to establish the actus reus of the offence, namely, that the statement is in fact false. It would not establish that the false statement was made knowingly or wilfully.186 The party seeking a remedy under Rule 91(B) must establish strong grounds for believing that a witness may have knowingly and wilfully given a false statement. There may be occasions in which there is direct evidence to establish the mens rea of the offence. Where there is not, however, strong grounds may be established by inference.187 The appropriate remedy, should the test under Rule 91(B) for false testimony be satisfied, is one of the options set forth in Rule 77(C). In cases where the offence of false testimony has been clearly established before the Trial Chamber, the Chamber may then choose to proceed summarily.188 In most cases, the most appropriate remedy would be to order the Registrar to appoint an independent counsel to conduct the investigation and report back to the Chamber as to whether there are sufficient grounds for initiating false testimony ­proceedings.189 Guided by the law the question for the Chamber’s determination is whether the party has shown that there exist strong grounds or there is reason to believe that witness knowingly and wilfully gave false testimony in the trial proceedings contrary to Rule 91. In effect, the issue for the Chamber’s determination is whether the party in question has presented evidence from 183  Ibid. para. 25. 184  Ibid. para. 26. 185  Ibid. para. 27. 186  Ibid. para. 30. 187  Ibid. para. 31. 188  Brima et al. Decision on Defence Appeals pursuant to Rule 77(j)) para. 18. 189  Sesay Decision to Investigate False Testimony, para. 36.

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which the Trial Chamber can conclude that there are strong grounds to believe that the witness has committed the offence of false testimony to warrant application of the procedure by Rule 77(C).190 The Judges in making a decision in Sesay referred to ICTR Jurisprudence in Akayesu and Rutaganda endorsing the proposition that the demonstration of inconsistencies, inaccuracies or contradictions in the evidence of a witness that raise doubts as to his/her credibility is not enough to establish that he/ she has made a false statement.191 They opine that such factors are issues to be considered by the Court in its assessment of the credibility and the reliability of the witness’ evidence, but something further is required to establish the required mens rea of the offence of false testimony.192 In Sesay the Defence had submitted that the details recorded in the written statement and the subsequent denial necessarily meant that a certain witness TF1-366 must have willingly fabricated the evidence. The Prosecution, on the other hand argued that this might be evidence of, at most, a prior-inconsistent statement, which it does not concede, but that such evidence does not amount to false testimony.193 The Judges ruled that the evidence does reveal an inconsistency between the witness’ written statements and his oral testimony, but that such inconsistency, contrary to what the Defence contends, does not demonstrate or constitute false testimony. They reiterated that all of the inconsistencies and contradictions will be considered during the Trial Chamber’s final determination of the credibility, reliability and probative value of the said witness’s evidence and all of the other Prosecution and Defence evidence adduced during the trial, but cannot be treated, at this stage, as probative of the offence of false ­testimony.194 The Judges did not accept the Defence submission that the remainder of the witness’ testimony is “replete with contradictions and inconsistencies” amounting to false testimony.195 In its judgement the Chamber finally shared the concerns of the defence Counsel that the testimony of TF1-366 was often problematic. In their view the testimony of this witness tended to over-implicate the Accused, in a way that went beyond the general story as related by other witnesses. The Chamber was therefore cautious, and did not 190  Ibid. para. 37. 191  Sesay Decision to Investigate False Testimony para. 28; Akeyesu Decision to Investigate False Testimony, p. 3; Akeyesu Judgement, paras. 139–140; Rutaganda Decicion on Appeals to Investigate false Testimony, para. 28. 192  Ibid. para. 29. 193  Ibid. para. 46. 194  Ibid. para. 47. 195  Ibid. para. 48.

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accept the testimony of TF1-366 as it relates to the acts and conduct of the Accused unless corroborated in some material aspect by a reliable witness. However, where TF1-366 has given more general evidence, or has testified about his own experiences, the Chamber has accepted his evidence without corroboration. The question is why was there not an investigation of TF1-366 to determine if he willfully gave false testimony as alleged by the defence.196 In spite, of its jurisprudence on false testimony as outlined above the SCSL has had little regard to prosecute and sanction false witnesses. In the Taylor case for instance the Judges found incidents in which a certain witness TF1-579 was clearly untruthful, the judges did not call for an investigation into such but rather decided to find that the testimony of the witness must be considered with caution and cannot be relied upon without corroboration.197 Again why was this witness not investigated and prosecuted for false testimony. According to Combs sometimes the witness lying becomes apparent just through use of common sense. For instance one witness maintained that he was not acquainted with another witness and it later turned out that the other witness was his son.198 For Kelsall the quality of evidence elicited at the SCSL was generally poor. Trials were taking place in a culture where ambivalence is prized which may have encouraged witnesses to tell only half-truths in their statements. In some cases it led to them not tell the full truth in court, a witness protection and payments regimes also provided the witnesses with an incentive for them to massage the truth.199 4.4 Conclusion Based on the evidence, the SCSL has shown aspects of a cosmopolitan court when it held in Sesay that the proofing of witnesses is a legitimate practice.200 Although the treaty of the SCSL does not give the Judges the duty to find the truth, the rules do pursuant to Rule 90(F)(i). In Norman it was held that the 196  Sesay Judgement para. 546. 197  Taylor Judgement para. 345. 198  Nancy Amoury Combs, ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International Law & Foreign Affairs 235 at 255. 199  Tim Kelsall, Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) pp. 35 & 255–257; See also Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 136–148. 200  Sesay Judgement, para. 121.

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ascertainment of the truth depends primarily upon the witness being heard at trial in the presence of the accused.201 The Judges have also emphasised and exercised their authority to order witnesses by way of subpoena in Norman and Taylor.202 All the above practices exhibit features of a cosmopolitan court as they guarantee the fair trial rights of the accused, the rights of the witness/ victims and also protect the Court’s evidence. The Court has however failed to ensure that necessary safeguards are in place for its witness allowance scheme. As evidenced the excessive payments given to prosecution witnesses and allegations of investigators using the scheme to induce witnesses does not reflect the cosmopolitan vision of the Court.203 Also, the use of many insider witnesses without sufficient, safeguards in place was flawed. As it is alleged many of such witnesses were out to testify for financial gain.204 Notwithstanding its mandate and the witness right to an allowance, the witness allowance scheme should not be seen as an inducement for witnesses to provide testimony. The very nature of the allowance scheme questions the credibility of trials. If from the very beginning a witness is induced by an allowance and decides to testify giving false testimony then the right to truth is jeopardised. There should have been a consistent practice of disclosure of witness payments as the Judges can ascertain whether such payments induced the witness to testify and could determine such witness reliability.205 Furthermore, as examined in this chapter certain factors may have impaired the credible assessment of testimony, the fact-finding competence of the SCSL Judges and their ability of ascertaining the truth. As indicated in the introduction of this book and in chapter one the truth needs to be reconstructed with the aide of witnesses. Their testimony must be recounted in ways that are comprehensible to the Judges. With the Court being located at the place where the crimes were committed a better practice and approach should have been taken to deal with these issues. Investigations should have been carried out properly and Court officials should have got a sense of the local culture, a sense of how witnesses visualize criminal trials and their perceptions as witnesses. Finally, the SCSL has failed to exhibit cosmopolitan features with regards to punishing 201  Norman Decision to disclose written witness statements paras. 10 & 12. 202  Norman Decision on Interlocutory Appeals para. 8; Taylor Judgement para. 45. 203  Taylor Judgement, para. 344; Sesay Transcript 2007, pp. 48–61; Sesay Motion Prosecutor’s Witness Management p. 6. 204  Ibid.; see Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 136 & 141. 205  Ibid. paras. 191–192 & 195; See Sesay request to hear evidence on WMU payments p. 3.

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false witnesses. Having sanctioned individuals for contempt of court for bribing witnesses and disclosing the names of protected witnesses,206 no witness has been convicted for false testimony. With allegations of witnesses providing false testimony the Court failed in its commitment to utilise its authority to sanction.207 In failing to punish these witnesses the Judges failed in their obligations to uphold the cosmopolitan grounding of the SCSL.

206  Margaret Brima Contempt Judgement para. 23; Senessie Contempt judgement & Bangura Contempt judgement. 207  See Sesay Judgement para. 546; Taylor Judgement para. 345.

Chapter 5

The International Criminal Court (ICC) Witness Scheme This chapter shall concentrate on five components of the ICC witness scheme i.e. practicalities, testimony, protection, cooperation and sanctions. Section one discusses practicalities such as witness modelling, sourcing, familiarisation and proofing. While sections two to five each examine the drafting of the key witness provisions taking into account proposals and debates during the drafting years. Followed by, an analysis on each of the provisions while making reference to academic commentary, scholary debates and ICC case-law/ jurisprudence. The chapter seeks to establish whether through its practice and jurisprudence the ICC exhibits cosmopolitan features. It also ascertains ICC judicial authority, jurisdiction over witnesses and the justification for imposing sanctions on witnesses. Like the other criminal tribunals evidence before the ICC, are to a considerable degree dependent on witness testimony. For instance, in Lubanga much of the evidence introduced, took the form of oral testimony. The Judges heard 67 witnesses, the prosecution called 36 witnesses, including 3 experts and the defence called 24 witnesses. Three victims were also called as witnesses following a request from their legal representatives.1 The importance of witnesses can also be illustrated with the use of the word witness/witnesses found throughout the ICC Statute and RPE. Importantly the following Articles demonstrate this: Article 93(1)(e) dealing with cooperation; Articles 68(1) and 43(6) on protection; Articles 64(6)(b) and 69 on testimony; and Articles 70 and 71 on sanctions. Before proceeding to examine the ICC witness scheme, it is best to briefly explore the legislative history. At Rome there was a shared understanding that issues pertaining to witnesses should be addressed and incorporated in the treaty so as to enable them assist the Court. According to Claus Kress, the negotiators of the Statute and RPE faced a great many varying national solutions with respect to many aspects of the position of witnesses in criminal 1  Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T.Ch. I, 14 March 2012, para. 11 (hereinafter, Lubanga Judgment); see also number of witnesses at Prosecutor v. Katanga et al.; Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07, 21 November 2012, para. 3.

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­ roceedings be it in response to the most basic question who can be a witness, p be it regarding the scope of privileges or be it concerning the counselling and the compensating of witnesses.2 With the diversity of national laws the negotiators had to consider possible peculiarities of international criminal proceedings when reflecting about the procedural rules on witnesses. In some of these areas the finding of consensus solutions was possible thanks to the genuine spirit of compromise including all the readiness of negotiators to move away from national procedural perspectives.3 The key witness provisions mentioned above are deemed to be part of the context for the purposes of interpretation of the ICC treaty according to Article 31 of the Vienna Convention on the Law of Treaties (VCLT). As shall be examined in this chapter, the provisions were adopted with reference to national law, custom, treaty law, rules and concepts of international law. Also, the will of the parties drafting the provisions determined what laws and rules of procedure could be applicable. Consideration was taken as to the nature of the law and rules, their purpose as well as what would be the reasonable way to apply them. Thereby, enhancing the fact that the text was not constructed in a literally narrow way, its context thus acts as guidance of interpretation.4 Furthermore, material sources external to the Statute are thus relevant in the interpretation of witness provisions. Recourse may also be had to supplementary means of interpretation, including the preparatory work of the Statute and the circumstances of its conclusion, in order to confirm and determine the meaning resulting from the application and interpretation of the treaty according to VCLT Article 31.5 In light of the above, in 1993 the International Law Commission (ILC) worked diligently on the preliminary draft of the Rome Statute.6 The provisions on witnesses first appeared in the draft, with various commentaries on

2  Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) International and National Prosecution of Crimes under International Law; Current Developments (Berlin Verlag Arno Spitz GMBH, 2001) pp. 309–383. 3  Ibid. p. 312. 4  V CLT Article 31(2). 5  V CLT Article 32. 6  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) preface & pp. 6–18 (hereinafter, Schabas The International Criminal Court); Antonio Cassese, International Criminal Law (2nd ed. Oxford University Press 2008) pp. 328–329.

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evidence, sanctions, protection and cooperation.7 It contained several questions dealing with: the capacity of the ICC to compel attendance of witnesses, witness oath or declaration prior to testifying, the possibility of other alternatives of providing testimony, the rights of witnesses to refuse to give evidence, the question of arresting and prosecuting witnesses for misconduct against the Court, safe conduct and exclusion of witnesses when other testimony is being heard.8 Delegates observed that the rules of evidence were too complex to be addressed in the Statute; other opinion was that the Statute should include some basic provisions.9 On 9 December 1994, the UNGA Resolution 49/53, decided to establish an Ad Hoc Committee, its function was to review the major substantive and administrative issues arising out of the draft Statute prepared by the ILC.10 The provisions on evidence were only summarily discussed in the Ad hoc Committee a framework consisting of arrangements for evidentiary rules and procedures for the protection of witnesses was developed.11 Pursuant to UNGA Resolution 50/46, a decision was made to establish a Prepcom, in light of the report submitted by the Ad Hoc Committee. The Prepcom was tasked to discuss further the major substantive and administrative issues arising out of the draft Statute prepared by the ILC and take into account the report of the Ad Hoc Committee.12 Prepcom felt that fundamental 7   See Articles 36, 40, 46, 62 International Law Commission Draft Report of the International Law Commission on the work of its forty-fifth session, A/48/10, 3 May–23 July 1993 (herein­after, ILC 1993 Draft). 8   UN Report of the Ad Hoc Committee on the Establishment of an International Criminal Court General Assembly Official Records, Fiftieth Session Supplement No. 22 (A/50/22); Report of the Preparatory Committee on the Establishment of an International Criminal Court Volume II (Compilation of proposals) UNGA Fifty-first Session Supplement No. 22, A/51/22 1996 (hereinafter, Prepcom Report Vol. II); Schabas, The International Criminal Court p. 837. 9    I LC 1993 Draft p. 122 commentary no. 1 on Article 48; ILC Report of the International Law Commission on the work of its forty-sixth session, UNGA A/CN.4/L.491/REV.1 8 July 1994 (hereinafter, ILC 1994 Final Report). 10   U NGA Forty-ninth Session, Supplement No. 10 (A/49/10) paras. 90–91; UNGA (A/C.6/51/L.10) 14 November 1996; Antonio Cassese, International Criminal Law (Oxford University Press, 2003) p. 342. 11  Ad hoc Committee Report on the Establishment of the International Criminal Court 3–13 April 1995, Comments received to para. 4 UNGA Resolution 49/53 on the Establishment of an International Criminal Court Report of the Secretary-General, A/AC.244/1/Add.1, 30 March 1995, paras. 182–184. 12  Schabas, The International Criminal Court pp. 19–20; Fiftieth Session, Supplement No. 22 (A/50/22); UNGA Fifty-first Session Sixth Committee Establishment of an International Criminal Court, A/C.6/51/L.10, 14 November 1996, Agenda item. 147.

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or substantive principles of evidence should figure in the Statute itself while secondary and subsidiary rules could appear in the rules of the Court or other instruments.13 Finally, the jurisprudence of other international criminal tribunals played an important role in the drafting of the text, most especially the experiences, practice and procedure of the ICTY and ICTR.14 The rules of evidence and procedure of the ICTY/ICTR did form the initial template to base the discussions before Prepcom. Prepcom also benefited from the interpretations and applications of such rules of the Tribunals.15 These rules represented a hybrid of the two dominant legal systems in the world, civil and common law with many of the other legal traditions playing a lesser role. The process was essential considering that the positions of the States Parties were primarily influenced by their legal systems and cultures, which might have complicated the negotiations of these provisions in certain circumstances.16 The drafting process of the text on witnesses highlights an appreciation of the diversity of various national legal systems of the world, the impact and significance of fragmentation of international law, the relevance of other treaties and the important use of material sources of international law.17 Most importantly, the drafting of provisions reflects the common vision and values shared by the global community, demonstrating the will to adopt a treaty, which will be of great importance to the entire world, a cosmopolitan constitution.

13  Ibid. p. 838; Prepcom 1996 report, vol. I para. 286. 14  Reference was also made to other treaties, human rights covenants such as the ICCPR, IRC and also the use of jurisprudence of the European Court of Human Rights. 15  Kevin R. Gray, ‘Evidence before the ICC’, in Dominic McGoldrick Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court ‘Legal and Policy Issues’ (Hart Publishing 2004) pp. 287–313 at 290. 16  Ibid.; see Helen Brady, ‘The System of Evidence in the Statute of the International Criminal Court’ in Flavia Lattanzi and William A. Schabas Edited, Essays on the Rome Statute of the International Criminal Court (Vol. I Editrice il Sirente 1999) pp. 279–302 at 286; Fergal Gaynor and Laura K. Morris, ‘M. Cherif Bassiouni, The Legislative History of the Inter­national Criminal Court’ (2008) Journal of International Criminal Justice 815, 815 & 817; Antonio Cassese, International Criminal Law (2nd ed. Oxford University Press 2008) pp. 329–330. 17  VCLT Articles 31(2).

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Witness Journey

Witnessing before the Court is of importance, from the initial contact with investigators through to the trial the Court has the duty to ensure that it paves the way for the witness to testify. This section seeks to examine and analyse how the ICC has sourced its witnesses, the types of witnesses, what is the cost involved and how witnesses are prepared for testimony. 5.1.1 Modelling The Statute and Rules do not provide for the definition of the term ‘witness’. Kress observes that, the reference made to a person who is able to describe matters of which he/she has knowledge in Rule 66(2) implies the essence of the term witness.18 He notes that the distinction between the terms ‘witness’ and ‘expert’ which is widely recognised in national criminal procedures and referred in Article 93(1)(e), is not clearly reflected in the procedural provisions of the Statute and the Rules. The question arises whether the term ‘witness’ covers those persons who furnish the court with information on matters of science or on matters, which are outside the experience and knowledge of the Judges. According to him, Rule 140(3) suggests an affirmative answer in that it refers to ‘a witness other than an expert.’19 Nonetheless, at Rome the Committee of the Whole included a footnote in its report clarifying that the term ‘witnesses’ also includes expert witnesses.20 This section shall distinguish the various types of witnesses. 5.1.1.1 Crime-based or Eyewitnesses Eyewitnesses may include: victim-witnesses; government officials; staff from IO’s or NGO’s; suspects;21 insider witnesses;22 intermediaries,23 military personnel’s and guards. Insider witnesses for instance can testify on military expertise 18  Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) International and National Prosecution of Crimes under International Law; Current Developments (Berlin Verlag Arno Spitz GMBH 2001) pp. 309–383 at 315. 19  Ibid. p. 316. 20  Report of the working Group on procedural Matters, UN Doc.A/CONF.183/C.1/WGPM/L.2. 21  Not considered in this research. 22  See Mark B. Harmon & Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) Journal of International Criminal Justice 403–426. 23  Prosecutor v. Lubanga, Decision on Intermediaries, ICC-01/04-01/06, 31 May 2010, para. 50 (hereinafter, Lubanga Decision on Intermediaries).

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and due to their background and experience give evidence on specific technical issues raised during previous testimony and thus assist the Judges in its duty to find the truth.24 Victim or vulnerable witnesses may be child soldiers, sexual and gender crime witnesses, war affected juvenile or child witnesses and other victims of crime.25 In establishing the true context of, and background to, the facts and circumstances described in the charges against Lubanga, the Judges received evidence relating to alleged criminality from some children who were allegedly enlisted, conscripted or used as child soldiers who have witnessed or been involved in or been the victims of a wide range of criminal offences.26 The interviewing of vulnerable witnesses has been one of the major challenges faced by the prosecution.27 The victim witness is usually explained what it means to be a victim of crime under the Statute.28 The Prosecutor also conducts a physical and psychological assessment of any witness deemed vulnerable prior to any determination whether to call that witness to testify.29 In Katanga, an investigator stated that in order to ascertain that a person is actually a victim of crime investigators make sure that the witness was in fact talking about the attack under investigation and not some previous attack or a completely different village. A series of questions are posed to the witnesses in this regard and the information is corroborated, to the extent possible, with other sources, who might for example, have known the witness.30 Victim witnesses are often important witnesses in that they may provide the ­investigators, 24  Prosecutor v. Bemba, Decision on the defence’s objection to the use of 10 documents by the prosecution during Witness 219’s testimony, ICC-01/05-01/08, 2 December 2011, para. 17 (hereinafter, Bemba decision on defence objection to use 10 documents). 25  See Rule 85(2). 26  Prosecutor v. Lubanga, Decision on Judicial Questioning, ICC-01/04-01/06, 18 March 2010, paras. 38 & 40 (hereinafter, Lubanga decision on judicial questioning); see also Redress, Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court September 2006 pp. 1, 38 & 43 available at http://www.redress.org/downloads/publications/ childsoldiers.pdf (last visited June 2013) (hereinafter, Redress Victim Report). 27  Prosecutor v. Katanga et al., Transcript, ICC-01/04-01/07-T-81-Red-ENG WT, 25 November 2009, p. 10 para. 25 and p. 11 para. 1; p. 13 paras. 12–15 (hereinafter, Katanga et al. Transcript). 28  Ibid. p. 13 paras. 1–3. 29  Regulations of the Office of the Prosecutor ICC-BD/05-01-09, 23th April 2009 Regulations 61(1) & 36(3) (hereinafter, OTP Regulation); see also UN Guidelines on Justice in Matters involving Child Victims and Witnesses, ECOSOC Resolution 2005/20 of 22 July 2005; Redress, Ending Threats and Reprisals against Victims of Torture and Related International Crimes: A call to Action, December 2009, pp. 35–37 & 44 http://www.redress .org/downloads/publications/Victim%20Protection%20Report%20Final%2010%20 Dec%2009.pdf (last visited June 2013). (Hereinafter, Redress Report). 30  Katanga et al. Transcript, p. 26 paras. 18–25 and p. 27 paras. 1–5.

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their counsels and the Court with information, which is pertinent to the case against the accused. They are most likely prosecution witnesses who as a result of the crimes suffered harm.31 Rule 85(a) defines a victim as “[. . .] natural person who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court [. . .]”. The Lubanga Chamber has defined a victim as someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss.32 Only those who suffered harm as a result of the crimes charged may be considered victims in the case. There must be a link between the harm they suffered and the crimes faced by the accused.33 A victim witness may have a dual procedural status as victim and witness in cases before the ICC.34 In Katanga it was held that neither the Statute nor the Rules expressly prohibit the recognition of the procedural status of victim to an individual who is also a witness in the case.35 The Judges have formulated certain key principles for those individuals with dual status as victims and witnesses. Indicating that the security of these individuals should not be compromised, establishing that individuals with dual status do not accrue rights above and beyond those of someone who is solely a victim or a witness.36 In Lubanga the Judges accepted the dual procedural status of victim and witness rejecting the submission of the defence that victims appearing before the Court in 31  See Prosecutor v. Katanga et al., Decision on the Application for Participation of Witness 166, ICC-01/04-01/07-T 23 June 2008, para. 6 (hereinafter, Katanga decision on participation of witness). 32  Lubanga Judgment para. 14(ii). 33  Ibid. para. 14(iv), see also paras. 15–17. Note that the ICC considers as victims the parents and relatives of the child soldiers. Also note that the Court failed in Lubanga to include as victims those who suffered harm as a result of other crimes such as sexual violence. For more on this see Separate and Dissenting Opinion of Judge Odio Benito, attached to the Judgment (hereinafter ‘Odio Benitio Dissent’) paras. 15–21; Prosecutor v. Thomas Lubanga Dyilo, Prosecutor’s Information on Further Investigations, ICC-01/04-01/06-170, 28 June 2006, para. 7; Kai Ambos, ‘The First Judgment of the International Criminal Court (Pro­ secutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) International Criminal Law Review 115 at 117; Thomas R. Lieflander “The Lubanga Judgment of the ICC: More than just the First Step?” (2012) Cambridge Journal of International and Comparative Law 191 at p. 200. 34  Katanga decision on participation of witness paras. 6 & 11. NB: Note that this book refers to victims who have the status as witnesses and does not deal with victim participation in proceedings. 35  Ibid. para. 18. 36  Lubanga Judgment para. 19.

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person should be treated automatically as witnesses. They ruled that whether or not victims appearing before the Court have the status of witnesses depends on whether they are called as witnesses during the proceedings.37 Victims of crimes are often able to give direct evidence about the alleged offences, and as a result a general ban on their participation in the proceedings if they may be called as witnesses would be contrary to the aim and purpose of Article 68(3) and the Judges obligation to establish the truth.38 Importantly, the Judges held in Katanga that victims have a personal interest in establishing the truth about their victimization.39 The victim’s personal interest is in relation to their obligation for the world to know the truth. A victim’s allegiance is to humanity as a whole to know the truth through their stories and experiences about the crimes that affect us all. The Court balances the right of the victim to that of the accused, as the active involvement of victims should not prejudice the rights of the accused. When the Judges consider an application by victims who have this dual status, they establish whether the participation by a victim who is also a witness may adversely affect the rights of the defence at a particular stage in the case. The Judges take into consideration the modalities of participation by victims with dual status, the need for their participation and the rights of the accused to a fair and expeditious trial.40 In Lubanga some witnesses who were granted permission to participate as victims as the information submitted at that stage of proceedings was sufficient to establish on a prima facie basis that they were victims under Rule 85 had their participation withdrawn as victims due to their reliability and accuracy as witnesses.41 Kai Ambos writes that this procedure strikes a right balance between unduly restricting victim’s admission and the defence interest not to be confronted with false victim-witnesses.42 37  Prosecutor v. Lubanga Decision on Victims Participation ICC-01/04-01/06 18 January 2008, para. 132 (hereinafter, Lubanga Decision on Victims Participation). 38  Ibid. para. 133. 39  Prosecutor v. Katanga et al., Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC-01/04-01/07-474, 13 May 2008, paras. 30–44. 40  Lubanga Decision on Victims Participation para. 134; see also Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) International Criminal Law Review 115 at 116. 41  Lubanga Judgment paras. 484 & 502. 42  Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) International Criminal Law Review 115 at 118. NB: see in subsequent sections on credibility and reliability an analysis on this disqualified victim-witnesses.

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This exercise of jurisdiction and authority over the victim-witnesses in this case portrays a Court that furthers cosmopolitan ideals. Victim witnesses are to provide information to the Judges, which are pertinent to the case against the accused. The decision promotes justice and fairness by protecting the defence interest, as measures of trial fairness for the accused to an extent rest in the hands of the victim-witness since the Judges may rely on their testimony to decide the case against the accused. The Judges therefore acted to the best interest of justice. The Judges did not only protect the accused right to a fair trial but also its evidence and the credibility of its proceedings. It is worth mentioning that the decision by the majority Judges in Lubanga was not shared by Judge Odio Benito who observed in her dissent that the inconsistencies in the testimony of the relevant victim-witnesses which caused the Judges to exclude them from the proceedings does not necessarily mean that they lied as to their victimisation.43 The Judge opined that in such cases the Chamber should refrain from withdrawing the victim status since this might cause unnecessary psychological harm and lead to secondary traumatisation. For defence and fairness purposes it is normally sufficient to exclude the relevant testimonies as far as they concern the determination of the accused’s responsibility.44 The Judge established facts that the Chamber should have considered in determining that these persons were actually victims to the crimes against the accused although their testimony as witnesses were inconsistent.45 Again, in my view if the story told by these witnesses to the harm they suffered is not accurate then their credibility as victims of the crime becomes questionable. As observed victims provide information that is pertinent to the case against the accused. The decision in Lubanga portrays the Court as a moral teacher as it educates the victim-witness of the importance of providing a true account of their story and the impact thereof as they may loose their status as victims if part of their testimony is false. 5.1.1.2 Expert-witness The parties in the ICC may rely on the following kinds of expert-witnesses, an overview, gender, psychologists, military, socio-linguistic expert-witness and an expert on names.46 An expert witness on child soldiers and trauma 43  Odio Benitio Dissent para. 34 see paras. 22–35. 44  Ibid. para. 23. 45  Ibid., see also Thomas R. Lieflander “The Lubanga Judgment of the ICC: More than just the First Step?” (2012) Cambridge Journal of International and Comparative Law 191 at 208. 46  Prosecutor v. Bemba, Decision on the procedures to be adopted for instructing expert witnesses, ICC-01/05-01/08, 12 February 2010, para. 2 (hereinafter, Bemba Decision on

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for instance may be called before the ICC to provide testimony that addresses the traumatic effects of being a child soldier or, the training and discipline to which children may commonly be subjected to prepare them for combat.47 When assessing the testimony of expert witnesses, the Judges have considered factors such as the established competence of the particular witness in his/ her field of expertise, the methodologies used, the extent to which the findings were consistent with other evidence in the case and the general reliability of the expert’s evidence.48 Regulation 44(1) of ICC Regulation49 provides that the Registrar shall create and maintain a list of experts accessible at all times to all organs of the Court and to all participants. Experts shall be included on such a list following an appropriate indication of expertise in the relevant field.50 In Lubanga the Judges elected to instruct an expert-witness who was a UN Special Rapporteur according to Regulation 44(4).51 Although the parties had already made clear their intention to call at least one witness to deal with the background and context of the conflict, the Chamber said that: ‘it is important that we are assisted by more than one expert . . . because it is crucial that we have a thorough understanding of the general circumstances historical and otherwise in these general events occurred’.52 In Bemba the Chamber requested the prosecution to identify the expert-witnesses that it intends to rely upon at trial. The parties and the participants were requested to consider the relevant jurisprudence of the Court on this issue and the possibility of joint instruction by the parties procedure for instructing expert witness); Bemba Prosecution’s Request for Approval of its Proposed Experts and Joint Instructions by the Prosecution and Legal Representatives, ICC-01/05-01/08, 28 January 2010, para. 6 (hereinafter, Bemba Prosecution Request); Lubanga Judgment para. 105; Assembly of States Parties to the Rome Statute of the International Criminal Court Seventh session The Hague,Volume II, ICC-ASP/7/20, 14–22 November 2008, para. 123. 47  Prosecutor v. Lubanga, Prosecution’s Observations on Two Potential Expert Witnesses on Child Soldiers and Trauma and Submissions on the Instructions to the Experts, ICC-01/0401/0, 11 February 2009, paras. 1–7; Lubanga Judgment para. 105; Prosecutor v. Lubanga, Instructions to the Court’s expert on child soldiers and trauma ICC-01/04-01/06, 6 February 2009. 48  Lubanga Judgment para. 112; Prosecutor v. Ngudjolo, Judgment pursuant to article 74 of the Statute, ICC-01/04-02/12, 18 December 2012, para. 60 (hereinafter, Ngudjolo Judgment). 49  Regulations of the Court, ICC-BD/01-01-04, 17–28 May 2004 (hereinafter, ICC Regulation). 50  Bemba Prosecution Request para. 9. 51  Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06, 25 November 2008, pp. 17–18 (hereinafter, Lubanga Transcript/2008). 52  Ibid. p. 18.

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of any expert-witnesses. The presiding Judge added that the parties and the participants should indicate as early as possible “if there are any proposals that the established jurisprudence should be departed from”.53 Regulations 44 and 54(m) provide that the Chamber may, in the interest of justice, direct joint or separate instructions to expert-witnesses by the participants. The ICC jurisprudence was established in Lubanga where the Chamber was of the view that the joint instruction of experts will potentially be of great assistance to the Court because through the exercise of identifying with precision the real areas of disagreement between the parties, the expert will be placed in the best possible position to achieve a balanced and comprehensive analysis.54 There are two particular dimensions to this procedure that deserve mention: first, given the single expert will not be in any sense influenced, however unconsciously, by the viewpoint of only one party, he/she will be particularly able to present a balanced view of the issues, informed by the particular concerns of both sides; second, this procedure avoids any later disagreement as to the qualifications and impartiality of an expert instructed by a single party, with all the potential for delay and disruption to the trial proceedings.55 The Judges have been mindful of the obvious savings of costs and time if maximum agreement can be achieved by the parties and, where relevant, the participants in their instruction of expert-witnesses. In achieving that end, they have concluded that the work of the Court and the interests of justice as reflected in Regulation 54(m) would be significantly assisted if a single, impartial and suitably qualified expert is afforded the best possible opportunity to investigate areas of dispute, having been provided with the detail of the rival contentions.56 If the parties are unable to agree upon the joint instructions to be provided to the expert, they are to provide separate instructions on all the relevant issues. This approach will maintain the benefits of having agreement as to qualifications and expertise whilst also potentially keeping some of the advantages of limiting the areas of disagreement, following the discussions between the parties. The expert will then complete one report covering all the issues that have been raised in the competing instructions.57 In exceptional .

53  Bemba Decision on procedure for instructing expert witness paras. 1 & 4. 54  Prosecutor v. Lubanga, Decision on the Procedures to be adopted for Instructing Expert Witnesses” ICC-01/04-01/06, 10 December 2007, para. 15; see also Prosecutor v. Banda et al.; Update on the status of discussions on the joint instruction of an expert witness; ICC-02/05-03/09, 30 May 2011. 55  Ibid. 56  Ibid. para. 14. 57  Ibid. paras. 16–23.

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circumstances, the Judges consider it impractical for the joint expert to provide separate, private reports because he/she would usually be faced with insuperable difficulties as regards confidentiality, both when discussing the issues with the parties individually and when giving evidence.58 The Judges have however considered scientific evidence to be objective, even if the expert was appointed by only one party or by the Court in accordance with Regulation 44 of the Regulations of the Court.59 5.1.2 Sourcing The sourcing of witnesses at the ICC has been a challenge. The Court is very much geographically distant from witnesses. This has a clear effect on the regularity of the contact that it has with witnesses, some witnesses simply reside in rural areas where access is very difficult to establish, others have gone without access to investigators for long times while others have even been cut off completely.60 During the first three years of the Court’s functioning the Prosecutor had to learn how to approach the possible witnesses without exposing them, identifying safe sites for interviews; secure discreet transportation for investigators and witnesses; provide for the contingency of moving witnesses to safe locations without attracting attention; and even check the relationships of drivers and hotel owners with the suspects.61 Intermediaries who may be local persons or staff from IO’s or NGO’s working in the region of the crime fulfil the role by facilitating contact with potential witnesses.62 The Prosecutor has stated that it tries to find witnesses through various sources and tries to ascertain the location of those witnesses before employing any intermediaries to work on their behalf.63 In Lubanga the Judges were informed that 23 individuals or organisations contacted or introduced potential incriminating witnesses.64 The prosecution underlined what it suggests was the critical assistance provided by the intermediaries; six of these intermediaries were used to reach half of its trial witnesses, thereby undertaking 58  Ibid. 59  Ngudjolo Judgment para. 60. 60  Katanga et al., Transcript p. 10 paras. 20–24. 61  Office of the Prosecutor Report on the activities performed during the first three years (June 2003–June 2006) 12 September 2006 p. 7 available at http://www.icc-cpi.int/NR/ rdonlyres/D76A5D89-FB64-47A9-9821-725747378AB2/143680/OTP_3yearreport20060914_ English.pdf (hereinafter referred to as Prosecutor Report on Activities) (last visited January 2013). 62  Lubanga Decision on Intermediaries,para. 30; see Lubanga Judgment paras. 181–189. 63  Katanga et al., Transcript p. 62 paras. 1–3. 64  Lubanga Decision on Intermediaries paras. 2–3.

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tasks in the field that staff members cannot fulfil without creating suspicion. Intermediaries also know members of the community, and have access to information and places that are otherwise unavailable to the prosecution.65 In Lubanga there were two categories of intermediaries those in the first category assisted in identifying witnesses and they facilitated contact between the witnesses and the investigators. These individuals were often activists.66 The second category of intermediaries assisted by contributing to the evaluation of the security situation such as some members of MONUC and the Congolese armed forces.67 For the purposes of this research the first category of intermediaries is relevant as they are said to provide substantial assistance to the prosecution in the process of obtaining witness statements that have been reflected in evidence before the Judges.68 Similarly, the defence finds its witnesses through the same medium.69 It is worth stating that the procedure for selecting these intermediaries has been greatly flawed. As will be explained in the later part of this chapter some witnesses were induced by some intermediaries to provide false testimony. There was no formal recruitment procedure for selecting intermediaries, there was no process of candidacy or application, an intermediary, was simply someone who could perform the role. The criteria used to identify suitable individuals to act in this capacity depended on the opportunities and events confronting them.70 Over time this changed the investigation team carried out some verification of the intermediaries based on the information available to them. In certain instances their background was sufficiently demonstrated by the reports on their human rights activities in the field along with the risks they had taken in order to conduct successful investigations. Nonetheless this approach was not applicable to intermediaries who were not recognised human rights activists and who were for instance engaged in more discreet activities. The investigators attempted as far as possible to obtain information on the intermediaries 65  Ibid. para. 88. 66  Lubanga Judgment paras. 190–192. 67  Ibid. para. 193. 68  Lubanga Decision on Intermediaries paras. 40 & 42; Lubanga Judgment paras. 190–192. 69  Prosecutor v. Lubanga, Second Decision on disclosure by the defence and Decision on whether the prosecution may contact defence witnesses, ICC-01/04-01/06-2192-Red, 20 January 2010, para. 2 (hereinafter, Lubanga Decision on disclosure by the defence January 2010); Aegis Lubanga Chronicle #89 OTP Intermediary 321 to respond to allegations of falsifying evidence 28 June 2010 available at http://www.aegistrust.org/LubangaChronicles/lubanga-chronicle-89-otp-intermediary-321-to-respond-to-allegations-offalsifying-evidence.html (last visited July 2010). 70  Lubanga Judgment para. 195.

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but obtaining information was risky because it could expose them to a disproportionate level of risk.71 Apart from Lubanga the prosecution has been criticised for not carrying out adequate investigations in other cases. For instance in Kenyatta, the Judges ruled that the prosecution should have carried out a more thorough investigation.72 In this case 24 out of the prosecutions 31 fact witnesses were interviewed for the first time after the confirmation hearing.73 The Judges nevertheless accepted that the circumstances under which the prosecution was operating were difficult and may have affected its ability to conduct a fuller investigation prior to confirmation.74 Judge Christine Van Den Wyngaert however argues that the facts show that the prosecution had not complied with its obligations under Article 54(1)(a) at the time when it sought confirmation and that it was still not even remotely ready when the proceedings started. She argues that the prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation.75 The concern raised in these cases goes to show the problems with Prosecutor’s investigations. If enough evidence is not collected and witnesses sourced are not reliable then the credibility of the prosecution’s case is to be questioned. The prosecution needs to carry out thorough investigations and verify not only the intermediaries but also the witnesses sourced and interviewed.76 The OTP has reported that it has been a high priority and a key consideration in its handling of witnesses and decisions as to what evidence will be used in order to prove specific elements of crimes. Each witness requires a careful approach before, during and after conducting the interview.77 The preinterview measures usually consists of screening, selection of witnesses; security assessment; background preparation (e.g., geographic and community layout) to contextualize witness statements and screen witnesses; psychological assessment of victim-witnesses with special measures for victim-witnesses 71  Ibid. paras. 196–197. 72  Prosecutor v. Kenyatta, Decision on defence application pursuant to Article 64(4) and related requests, ICC-01/09-02/11, 26 April 2013 paras. 123 (hereinafter, Kenyatta Article 64 Decision); See also Ngudjolo Judgment para. 516. 73  Ibid. para. 122. 74  Ibid. para. 124. 75  Concurring Opion of Judge Christine Van Den Wyngaert, ICC-01/09-02/11-728-Anx2 paras. 1–3 (hereinafter, Wyngaert Concurring Opinion). 76  The credibility of witnesses in these cases is further discussed in subsequent sections 5.4 and 5.5. 77  Prosecutor Report on Activities p. 11.

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who were sexually assaulted and for child-witnesses to ensure that interviewee is in state of preparedness so as not to be traumatized by the interview process; and providing witnesses with choice as to gender and age of interviewer.78 In selecting persons to be questioned in connection with an investigation, the prosecution is to assess the person’s reliability and gives due consideration to his/her safety and wellbeing. Prior to contacting a person to be questioned in connection with an investigation the Prosecutor is to collect as much information as possible on the level of risk involved for that person as well as for others who may be at risk on account of such questioning, including those who facilitated contact between the office and the person to be questioned. Based upon its determination of the level of risk, the office may consider alternatives to questioning as well as the possibility of additional security measures, in consultation with the Victims and Witness Unit (VWU) as appropriate.79 Generally before becoming a potential witness all prosecution witnesses for instance are explained what the Court is and what is the reason for the meeting with the investigators. Investigators talk about what it means to be a witness and what is the process of giving a witness statement. They explain the voluntariness of the whole process.80 In addition, investigators make sure that the witness understands what disclosure means; what it means that his/ her identity will be known at some point. They also explain any procedural issues related to Article 93 or the possibility that the Court might decide to transmit the statement to a State Party.81 The aim of explaining all procedural rights to the witness in full is to assist the person to make an informed decision and make sure that the person clearly understands what he/she is getting into.82 The prosecution is to ensure that there is discreet and secure contact with witnesses in adherence to good practices and the code of conduct of investigators.83 Some potential witnesses have declined to speak to investigators after having heard the full explanations of the procedural issues related to giving witness testimony.84

78  Ibid.; ICC sixth-session ICC-ASP/6/INF.2, p. 47; See Lubanga Judgment paras. 185–186 on witness screening. 79  OTP Regulation 36(1)–(2). 80  Katanga et al. Transcript p. 12 paras. 24–25; OTP Regulation 40. 81  Ibid. p. 13 paras. 4–8. 82  Ibid. p. 13 paras. 9–12. 83  OTP Regulation 45. 84  Katanga et al. Transcript, p. 27 paras. 7–25 and p. 28 para. 1.

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5.1.3 Cost/Incentives The Court budgets for millions to get witnesses to testify. The budget usually meets the costs necessarily incurred by witness attending interviews, costs relating to the Court’s duty of care towards witnesses assisting the cases, to witness travel, accommodation, allowance and protection.85 Registry Regulation 80 provides services such as clothing allowance to witnesses on case-by-case bases.86 Witnesses may be entitled to an incidental allowance for personal expenses. They are provided an attendance allowance as compensation for wages, earnings and time lost as a result of testifying. Also, witnesses who suffer undue financial hardship as a result of being absent from legal income earning activities for the purposes of the Court are entitled to an extraordinary allowance for lost earnings.87 In addition, from the moment a person joins the ICC witness protection programme, the issue of self-sufficiency has to be dealt with. The VWU must provide this person with the necessary support to enable him/her to achieve the goal of providing testimony.88 Further in the case for victim-witnesses, Article 75 provides that “the Court shall establish principles relating to reparations to, or in respect of, victims including restitution, compensation and rehabilitation”.89 In Lubanga there were serious allegations of witnesses being induced to testify. For instance a witness alleged that he heard that a certain intermediary 321 had said that there was an NGO which was going to help the children who had dropped out of school; they were going to be given apprenticeships, taught trades or helped to attend school. Intermediary promised the witness money or to give them money and a house, and said that the ICC would be there to help him. The witness said that he lied to the investigators because 85  Proposed Programme Budget for 2010 of the International Criminal Court, Eighth session, The Hague 18–26 November 2009, ICC-ASP/8/10, paras. 42, 51, 126 and 155. 86  Regulations of the Registry, ICC-BD/03-01-06, 6 March 2006 available at http://www.icccpi.int/NR/rdonlyres/A57F6A7F-4C20-4C11-A61F-759338A3B5D4/140149/ICCBD_030106_ English1.pdf (last visited July 2013). (Hereinafter, Registry Regulation). 87  Ibid. Regulations 84–86. 88   I CC: Summary Report on the Round Table on the Protection of Victims and Witnesses Appearing Before the International Criminal Court p. 7 available at http://www.icc-cpi .int/Menus/ICC/Structure+of+the+Court/Protection/ (last visited July 2010). 89  See Rule 94; see also the UN Guidelines on Justice in Matters involving Child Victims and Witnesses stipulate that ‘child victims should, wherever possible, receive reparations in order to achieve full redress, reintegration and recovery; Sergey Vasiliev, ‘Article 63(3) and personal interests of victims in the emerging practice of the ICC’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 634–690 at 637.

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‘he merely wanted to have some money.90 In light of the above allegations, the OTP stressed that witnesses were not paid to answer questions. If they received money it was compensation for expenses such as transport, meals and communications; this was on a fixed basis because it was very difficult to estimate particular costs. If the individual was staying at a hotel or with a family they were given an allowance to cover additional expenses. The investigative team was concerned primarily with not being viewed as paying extravagant amounts to witnesses, thereby seeming to promise money in exchange for evidence. Striking the right balance was not easy and one of the intermediaries had an indication of certain costs. Although the investigators often had documents setting out the amounts for certain items for costs such as food and lodging the intermediaries assisted in assessing the relevant level of compensation.91 Also in accordance with OTP Regulation 40(d) the process of witnessing is meant to be a voluntary process and questioning is voluntary and the person has an option to conclude at anytime.92 Pursuant to OTP Regulation 43(1) no inducement whatsoever shall be offered to a person in exchange for questioning or a statement. However persons are compensated for expenses incurred and earnings lost as a result of their cooperation, for the duration of such questioning or provision of a statement.93 The evidence provided by the witness above clearly justifies the analysis in chapter one that the allowances/benefits or payments given by the ICC maybe an incentive for a witness or child soldier coming from the DRC to testify. It may be difficult to assess how many of these witnesses were actually promised something or induced to testify. The moral court assertion of the ICC will be brought into disrepute if witnesses are seen as being induced to testify. The ICC should therefore ensure that excessive payments are not made to witnesses. The prosecution and defence must disclose the total costs of payments made 90  See Lubanga Decision on Intermediaries, paras. 26, 28, 35 & 38–39; see also Statement by ICC Prosecutor on the Notice to withdraw charges against Mr Muthaura 11/03/2013 available at http://icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Pages/OTP-statement-11-03-2013.aspx (last visited July 2013). (A key witness against Mr. Muthaura recanted a crucial part of his evidence, and admitted that he had accepted bribes). 91  Lubanga Judgment para 202; see also Aegis Lubanga Chronicle #88 OTP Representative testifies on the alleged corruption of evidence 18 June 2010(hereinafter Aegis Chronicle #88) available at http://www.aegistrust.org/Lubanga-Chronicles/lubanga-chronicle-88otp-representative-testifies-on-the-alleged-corruption-of-evidence.html (last visited July 2010).; Katanga et al., Transcript, p. 62 paras. 4–11 and p. 63 paras. 3–9. 92  OTP Regulation 40(d). 93  OTP Regulation 43(2).

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to witnesses for the purpose of assessing the credibility of witnesses, transparency and justice. 5.1.4 Witness Preparation: Familiarisation/Proofing At the ICC the terms “witness preparation”, “witness proofing” and “witness familiarisation” are all used, sometimes interchangeably, throughout the submissions of the parties, the legal representative of victims and the VWU. In Kenyatta, the Judges “[. . .] used the term, “witness preparation” to refer to a meeting between a witness and the party calling that witness, taking place shortly before the witness’s testimony, for the purpose of discussing matters relating to the witness’s testimony. The term “witness familiarisation” will be used to describe the support provided by the VWU to witnesses as set out in the Registry’s “Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony.”94 As to the legal basis for witness preparation the Statute is silent on the issue. However the Judges found that Articles 64(2) and (3)(a) provide ample authority for the Chamber to adopt a case-specific approach to the issue of witness preparation.95 Accordingly, Article 64 grants the Judges flexibility in managing the trial. Its formulation makes clear that the Statute is neither an exhaustive nor a rigid instrument, especially on purely procedural matters such as witness preparation, and that silence on a particular procedural issue does not necessarily imply that it is forbidden. Article 64 is formulated so as to give Judges a significant degree of discretion concerning the procedures they adopt in this respect, as long as the rights of the accused are respected and due regard is given to the protection of witnesses and victims.96 Once a witness accepts to testify he/she goes through process of familiarisation, the essence is to make the witnesses generally familiar with the Court’s infrastructure and procedures in order to prevent him/her being totally taken by surprise or even re-victimised.97 ICC Judges have ruled that the underlying idea of familiarisation is generally to prepare the witness to give oral evidence at trial in a satisfactory manner.98 There are several provisions that assist the 94  Prosecutor v. Kenyatta et al., Decision on witness preparation, ICC-01/09-02/11, 2 January 2013, para. 4 (hereinafter, Kenyatta decision on witness preparation). 95  Ibid. paras. 30 and 33. 96  Ibid. para. 31. 97  Kai Ambos, ‘Witness Proofing’ before the ICC: Neither legally admissible nor Necessary’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 599–614 at 599. 98  Prosecutor v. Lubanga, Decision on the Practices of Witness familiarization and Witness Proofing, ICC-01/04-01/06, 8 November 2006, para. 27 (hereinafter, Lubanga decision on witness familiarisation and proofing).

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witness so as to prevent the witness from finding himself/herself in disadvantageous position or from being taken by surprise as a result of his/her ignorance.99 In Lubanga it was held that familiarisation has the following purposes: assisting the witness to fully understand the Court proceedings, its participants and their respective roles; reassuring the witness about his/her role in proceedings before the Court; ensuring that the witness clearly understands that he/she is under a strict legal obligation to tell the truth when testifying; explaining to the witness the process of examination first by the prosecution and subsequently by the defence; discussing matters related to the witness security and safety in order to determine the necessity of applications for protective measures before the Court and finally making arrangements with the prosecution in order to provide the witness with an opportunity to acquaint himself/herself with the prosecutions trial lawyer and others who may examine the witness in Court.100 Furthermore, the Judges have concretely determined the scope of familiarisation in particular whether the witness may receive a copy of his/her earlier statement made to an investigator.101 The VWU is to undertake the witness familiarisation process.102 A VWU protocol sets out its approach throughout the trial to the preparation and handling of witnesses in the field, at the location selected for them to give their evidence, during their testimony and post-trial. These general provisions can be adjusted according to the needs of individual witnesses.103 On the other hand, witness proofing an established practice at the ICTY, ICTR and SCSL was prohibited at the ICC.104 Lubanga Judges held witness 99  Ibid. para. 20. 100  Prosecutor v. Lubanga Decision Regarding the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial, ICC-01/04–01/06-1049, 30 November 2007, paras. 29–30 (hereinafter, Lubanga decision regarding the practice to prepare and familiarise witnesses). 101  Prosecutor v. Lubanga Decision Regarding the Protocol on the Practices to be used to Prepare Witnesses for Trial, ICC-01/04-01/06-1351, 23 May 2008, para. 38 (hereinafter, Lubanga Protocol Witness Practices). 102  Ibid. paras. 33 & 53–56. 103  Ibid. para. 2; See also VWU Unified Protocol on the Practices used to Prepare and Familiarise Witnesses for giving testimony at Trial, ICC-01/05-01/08-972-Anx 25-10-2010; VWU Protocol on the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial, 31 January 2008, ICC-01/04-01/06-1150-Conf. 104  Prosecutor v. Katanga et al., Decision on a number of Procedural issues raised by the Registry, ICC-01/04-01/07, 14 May 2009, para. 18 (hereinafter, Katanga Procedural Issues); See also Sergey Vsilev, ‘Proofing the Ban on witness Proofing’ Did the ICC Get it Right’ (2009) Criminal Law Reform 193; Hannah Garry, ‘Witness Proofing’ in Linda Carter & Fausto

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proofing is substantive preparation with a view to giving testimony at trial.105 The parties are under strict rules in the preparation of witnesses to avoid coaching their testimony.106 The Judges stressed that the practice of proofing is not embraced by any general principle of law, referring to such jurisdictions as Brazil, France, Germany and Spain on the one hand and England and Wales and the US on the other hand.107 They held that it would be the duty of the Prosecutor to refrain from undertaking the practice of witness proofing.108 Given the absence of a general principle and thus a legal basis of proofing this practice has been considered prohibited under the current ICC legal regime.109 In addition, the Judges refrained from relying on the jurisprudence and practice of the ad hoc tribunals, ruling that it does not consider their procedural rules and jurisprudence to be automatically applicable to the ICC without detailed analysis.110

Pocar (eds.) International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (Edward Elgar 2013) pp. 66–96 at 66–67 & 73–90. 105  Lubanga decision regarding the practice to prepare and familiarise witnesses para. 28; see also Prosecutor v. Lubanga, Prosecution submissions regarding the subjects that require early determination procedures to be adopted for instructing Expert Witnesses, Witness Familiarization and Witness Proofing, ICC-01/04-01/06-952, 12 September 2007, paras. 9 & 15. 106  Lubanga Protocol Witness Practices; Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06 16 January 2009, pp. 24–29. 107  Lubanga decision on witness familiarisation and proofing paras. 42 & 37; For witness proofing in national legal systems see Hannah Garry, ‘Witness Proofing’ in Linda Carter & Fausto Pocar (eds.) International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (Edward Elgar 2013) pp. 66–96 at 69–73. 108  Ibid. para. 42. 109  Lubanga decision regarding the practice to prepare and familiarise witnesses para. 57; see also Prosecution v. Bemba, Decision on the Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony at trial, ICC-01/05-01/08-1016, 18 November 2010, para. 34 (hereinafter Bemba Unified protocol); Kai Ambos, ‘Witness Proofing’ before the ICC: Neither legally Admissible nor Necessary’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 599–614 at 600. 110  Ibid. para. 44; Reinhold Gallmetzer, ‘The Trial Chamber’s discretionary power to devise the proceedings before it and its exercise in the trial of Thomas Lubanga Dyilo’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 520–521; Kai Ambos ‘Witness Proofing’ before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’ (2008) Leiden Journal of International Law 911–916.

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The Lubanga decision is subject to criticism, proofing has a number of advantages for the due functioning of the judicial process. It guarantees the rights of the defence an obligation owed by the ICC to them. It enhances the fairness and expeditiousness of the trial and does not prejudice the rights of the accused. In Kenyatta, having established that Articles 64(2) and (3)(a) provides for the legal basis for the Judges to rule on witness preparation, the Judges considered the potential merits and risks of witness preparation. They held that one of the merits of witness preparation is to facilitate a fair and expeditious trial. It goes without saying that relevant, accurate and complete witness testimony facilitates a fair, effective and expeditious trial. The need for clear and focused testimony is especially significant at this Court, where Article 69(2) establishes the principle of the primacy of oral evidence. The live testimony of witnesses, elicited through questioning by the parties, participants and the Chamber is likely to constitute the most significant body of evidence in the case. As a result, the manner in which witness testimony is presented to the Chamber is of particular significance. A witness who testifies in an incomplete, confused and ill-structured way because of lack of preparation is of limited assistance to the Chamber’s truth-finding function.111 The Judges agreed that permitting witnesses to re-engage with the facts underlying their testimony aids the process of human recollection, better enables witnesses to tell their stories accurately on the stand and can assist in ensuring that the testimony of a witness is structured and clear. Also that showing witness’s potential exhibit ahead of time will assist in the efficient conduct of proceedings and will help to ensure that witnesses are in a position to give the Chamber the most complete version of their evidence. In order to elicit focused and structured testimony and to ensure that all probative evidence is presented, it is also important that counsel, particularly counsel of the calling party, are well prepared and fully acquainted with each witness’s evidence. A pre-testimony meeting is a last opportunity for the calling party to determine the most effective way to question its witnesses and which topics will elicit the most relevant and probative evidence during in-court examination.112 The Judges ruled it is for these reasons that witness preparation is either allowed or encouraged at the ad hoc tribunals and in various national jurisdictions where the principle of the primacy of orality is followed and where trials heavily rely on the examination of live witnesses through questioning by the parties. Accordingly, properly conducted, witness preparation is also likely to

111  Kenyatta decision on witness preparation para. 35. 112  Ibid. paras. 36–38.

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enhance the efficiency, fairness and expeditiousness of the trial.113 Moreover, the crimes under the jurisdiction of the Court are complex, both as regards the factual circumstances and legal issues involved. Consequently, witnesses may have to give complicated and delicate evidence in the courtroom. At the same time, many of the witnesses before the ICC have no experience in a courtroom; they come from places far from the seat of the Court and come from a variety of different cultural and linguistic backgrounds. They are often unfamiliar with the Court’s system of questioning and cross-examination. In addition, witnesses testifying are often asked to recount events that occurred many years ago. As a result, there is an increased likelihood that witnesses will give testimony that is incomplete, confused or ill-structured.114 Proper witness preparation also enhances the protection and well-being of witnesses, including by helping to reduce their stress and anxiety about testifying. Particularly with regard to vulnerable witnesses, such prior preparation may help to reduce the psychological burdens of testimony, since those witnesses may face unique difficulties when being questioned repeatedly about traumatic events. According to the Judges, enabling interaction with counsel on the substantive aspects of their evidence may help to increase witnesses’ confidence and may reduce their reluctance to reveal sensitive information on the stand.115 The majority of the Chamber found in Kenyatta that witness preparation is more crucial as a means to protect the well-being of the witnesses, considering the specific situation in Kenya.116 Having also considered the risks involved in witness preparation the Judges were mindful of the concern that witness preparation could become an improper rehearsal of in-court testimony, which may negatively affect the reliability of the evidence adduced at trial. However the Judges are not convinced that this possibility necessitates a total ban on pre-testimony meetings between parties and witnesses they are calling. They consider that the risk can be adequately addressed by appropriate safeguards such as cross-examination, video recording of the preparation sessions and also following the guidelines establishing permissible and prohibited conduct.117 This decision in Kenyatta to allow for the preparation of witnesses in accordance with the “Witness Preparation Protocol” which sets out a list of 113  Ibid. para. 39. 114  Ibid. para. 40. 115  Ibid. para. 41. 116  Ibid.; see also Prosecutor v. Ruto et al; Decision on witness preparation, ICC-01/09-01/11, 2 January 2013 (hereinafter Ruto decision on witness preparation). 117  Ibid. paras. 47–51; for potential risks see paras. 42–46.

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permitted and prohibited conduct, along with rules governing logistics matters and disclosure is a significant decision.118 However it is of great importance that the same standard of witness preparation applies to all cases before the ICC not just a case-specific approach in accordance with Article 64(2) and (3)(a). Taking into account the nature of crimes before the Court and the advantages cited above, prosecution/defence teams should spend time prior to trial to revise the statements of their witnesses and testing whether there is consistency witness to witness. Moreover as rightly put by the Judges: “After thorough consideration of the various advantages and drawbacks of the practice, the Chamber concludes that it is neither practical nor reasonable to prohibit pre-testimony meetings between parties and the witnesses they will call to testify at trial. Rather, judicious witness preparation aimed at clarifying a witness’s evidence and carried out with full respect for the rights of the accused is likely to enable a more accurate and complete presentation of the evidence, and so to assist in the Chamber’s truth finding function.”119 The manner by which witnesses are sourced and with the Prosecutor having little control over intermediaries who source witnesses, proofing by them is important. As previously stated intermediaries are relevant as they provide substantial assistance to the prosecution in the process of obtaining witness statements that have been reflected in evidence before the Judges.120 It has also been indicated that some of these intermediaries are alleged to have induced witnesses to provide false statements to investigators.121 Thus, with the practice of proofing the prosecution will be able to weed out unreliable and untruthful testimony. A distinction should however be drawn between proofing by a Prosecutor and with usurping the role of adversarial examination or the role of the Judge. The Judges have a right to put questions to witnesses on facts and issues for the determination of truth and also the use of adversarial model by the ICC requires that all witness evidence is scrutinized orally though examination and cross-examination which is necessary for the determination of truth thus the prosecution should not usurp this roles during witness proofing by coaching the witness. Provided witness proofing by the Prosecutor is designed to weed out untruthful or unreliable testimony rather than to bolster the prosecution case then witness proofing should be encouraged particularly if it is made accountable to judicial oversight. Finally, witness proofing could be a determinant and important factor in the moral court assertion as 118  Ibid. paras. 53–54; see also Ruto decision on witness preparation. 119  Ibid. para. 52. 120  Lubanga Decision on Intermediaries paras. 40 & 42; Lubanga Judgment paras. 190–192. 121  Ibid. paras. 28, 35, 38–39.

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analysed in chapter one. It is argued that the ICC is a moral court that furthers cosmopolitan ideals by protecting the rights of all. As argued, witnesses have an obligation to provide truthful testimony before the ICC and the ICC as a moral teacher has an obligation to ensure that there are procedures in place for the purpose of obtaining truthful testimony. Witness proofing is therefore a relevant nexus between truthful testimony and the moral court. It is a practice, which will better guarantee the practicality of truthful testimony with the ICC ensuring that before a witness comes to testify before the Court, he/she should be prepared in a substantive way for testimony at trial. This ensures that the prosecution for instance weeds out unreliable or untruthful testimonies as inconsistencies found in previous statements could be identified. 5.2 Cooperation The ICC cooperation regime reflects a creative and unique scheme for cooperation, primarily of a ‘vertical nature’.122 Part 9 of the Statute dealing with international cooperation and judicial assistance is of great significance for an accurate evaluation of the role of witnesses in ICC proceedings.123 One of the key provisions on State cooperation with regards to witnesses is Article 93(1)(e) it provides: ‘States Parties shall, in accordance with the provisions of this Part and under procedures of national law, complies with requests by the Court 122  Claus Kress and Kimberly Prost “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1572; Claus Kress, Kimberly Prost & Peter Wilkitzki, ‘Part 9: International Cooperation and Judicial Assistance, Preliminary Remarks’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1503–1512 at 1507–1509; Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (Transnational Publishers 2002) p. 254 fn. 152; Rod Rastan, The responsibility to enforce connecting justice with unity’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 165–169; Judge Hans-Peter Kaul, ‘The International Criminal Court—Its relationship to domestic jurisdictions’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 31–38 at 35. 123  Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) International and National Prosecution of Crimes under International Law: Current Developments (Berlin Verlag Arno Spitz GMBH, 2001) pp. 309–383 at 313.

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to provide the following assistance in relation to investigations or prosecutions: (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court (. . .).’ This section will begin with a brief legislative history on cooperation, then an analysis of the Article and finally a conclusion on the general obligation of States to cooperate with the Court. 5.2.1 Legislative History Article 93 was originally part of the more general provision dealing with State cooperation adopted initially by the working group of the ILC. States Parties were required to respond without undue delay for any request for international judicial assistance or an order issued by the Court. The general principle was followed by a non exhaustive list that included identification and location of persons taking of testimony and the production of evidence service of documents and any other request that may facilitate the administration of justice including provisions on interim measures as required.124 At Prepcom it appeared as Article 90(1)(e). It stated that “States Parties shall in accordance with the provisions of this parts and their national procedural law comply with requests for assistance by the court for facilitating the appearance of persons before the court.”125 Some amendments to the draft article was agreed, in chapeau of Article 90(1) the words “in relation to investigations or prosecution was inserted after the word assistance and in subparagraph e) the words witness and experts was replace to witness or experts.”126 Delegates were of the view that the term “witness” includes expert witnesses as well.127 Many different forms of cooperation and assistance were proposed for inclusion in the Statute, the issue of whether the list should be exemplary or exhaustive being unresolved. The enumeration of forms of cooperation in paragraph (1)

124   I LC 1993 Draft pp. 127–128; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 1019. 125   U N Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, Report of Prep Comm. Addendum (15 June–17 July 1998). 126  Report of the working group of judicial cooperation and assistance A/CONF.183/C.1/ WGIC/L.11/ADD.1 AND CORR.1, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, 15 June to 17 July 1998, Volume II, Summary records of the plenary meeting and of the meeting of the Committee of the whole. 127  Report of the Working Group on Procedural Matters, A/CONF.183/C.1/WGPM/L.2/ADD.2; Gilbert Bitti, “Functions and Powers of the Trial Chamber,” in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1199–1218 at 1213.

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was generally similar to what appears in the Rome Statute.128 The general draft provision on cooperation and judicial assistance, Article 51, was broad enough in scope to ground a duty to bring witnesses by force to the Court to testify.129 However, it was finally, considered preferable to ensure that the court itself had flexibility to receive testimony taken outside of its seat with the assistance of States or through, for example, electronic means.130 The ILC draft paid no specific attention to legal assistance by States in enforcing the subpoena power.131 Sluiter observes that with the lack of contempt powers in the 1994 Draft, one could have regarded subpoena powers as inherent powers, as was the ruling of the ICTY Appeals Chamber in the Blaskic case. While the 1994 Draft Statute appears to allow for an approach as adopted in Blaskic, thus inspired by a vertical cooperation relationship, the subsequent negotiations revealed significant reservations.132 Finally, attention was drawn to the guidelines elaborated by the ICTY for national implementing legislation aimed at facilitating cooperation with States under Article 21. Those guidelines dealt with a number of issues including the duty to cooperate and national authority responsibility for cooperation with the Tribunal. It was proposed that similar guidelines could be elaborated for the ICC on the major aspects of cooperation with States and other aspects being left to ad hoc arrangements between the Court and the States concerned.133 Some Delegations proposed that in providing assistance to the Court consideration should be taken of any mutual or multilateral treaties signed.134 The Working Group took into account 128  Prepcom Report Vol. II 1996, pp. 252–254; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 1019. 129  Article 59: Provisional Measures, Compilation Of Proposals On Judicial Cooperation and Enforcement Submitted To August 1996 Phase of The Preparatory Committee on the Establishment of an International Criminal Court 22 August 1996. 130  Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft summary Rapporteur: Mr. Jun Yoshida (Japan) A/AC.249/CRP.6/Add.1, 10 April 1996, 25 March–12 April 1996; Article 54: Judicial (Mutual) Assistance, Meeting of Experts on the Establishment of a Permanent International Court International Cooperation and Judicial Assistance prepared by Pieter Kruger, South African Department of Foreign Affairs, 19960710_ST_SOUTHAFRICA_UD(E). 131  Goran Sluiter, ‘I beg you, please come testify’—The Problematic Absence of Subpoen Powers at the ICC’ (2009) New Criminal Law Review 590, 596. 132  Ibid. p. 597; see also Goran Sluiter, ‘Appearance of Witnesses and unavailability of Subpoena powers for the Court’ in Roberto Bellelli International Criminal Justice: Law and Practice from the Rome Statute to its Review (Ashgate 2010) pp. 459–472 at 461–466. 133  Ad Hoc Committee on the Establishment of an International Criminal Court General Assembly Official Records · Fiftieth Session Supplement No. 22 (A/50/22) para 231. 134  Proposal by the Delegation of the Netherlands 7th of April 1996.

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the Model Treaty on Mutual Assistance in Criminal Matters.135 The debate surrounding the negotiation of the Article reflected the division of principle as to whether the Statute should reflect a horizontal or vertical cooperation regime. In the end no single approach prevailed but the scheme reflected a creative and unique scheme of cooperation, primarily of a vertical nature.136 After several years of negotiations the cooperation regime of the ICC recalls some elements, which are drawn from inter-state practice and others, which clearly mirror the law and jurisprudence of the ad hoc tribunals.137 5.2.2 Facilitate Voluntary Appearance Article 93(1)(e) leaves open the scope of the obligation of States to facilitate the voluntary appearance of a witness or an expert before the court.138 According to one view, “the ICC Statute precludes the possibility of witnesses to appear at the seat of the Court in that it affords witnesses with a ‘right of voluntariness’, i.e. an individual right not to appear”.139 State Parties are under no duty to compel witnesses to appear in The Hague to testify at trial. The duty of States Parties is limited to the facilitation of the voluntary appearance of a person as a witness. This principle of voluntary appearance of witnesses before the ICC conflicts with the principle enshrined in Articles 69(2) and 64(6)(b).140 135  Model Treaty on Mutual Assistance in Criminal Matters, UN Doc. A/Res/45/117, Annex Article 5; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 1019. 136  Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation” in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1572. 137  Rod Rastan “The Responsibility to Enforce—Connecting Justice with Unity” in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 163–182 at 166. 138  Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1576. 139  Bruce Broomhall and Claus Kress, “Implementing Cooperation Duties Under the Rome Statute: A Comparative Synthesis” in Claus Kress, Bruce Broomhall, Flavia Lattanzi, Valeria Santori (eds.) The Rome Statute of the International Criminal Court and Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (Volume II, Editrice il Sirente 2005) pp. 515–543 at 529 fn. 14. 140  See Claus Kress, “The procedural law of the International Criminal Court in outline: anatomy of a unique compromise,” (2003) Journal of International Criminal Justice 603, 616; Gilbert Bitti, “Functions and Powers of the Trial Chamber,” in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1199–1218 at 1213.

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The latter articles reiterate the well establish principle of international law that witnesses are under an obligation to appear in person and testify. The former article implies voluntary appearance leaving it at the discretion of a witness to appear before the Court. Due to the voluntary character of the appearance, witnesses are therefore free to decide whether or not to furnish their assistance to the Court. In practice, Articles 64(6)(b) and 93(1)(e) both yield the same result; the appearance of witnesses before the Court will be voluntarily only.141 Part 9 does not empower the ICC to request a State Party to compel a witness before the Court. The absence of such powers is envisaged in Articles 93(1)(e) and 93(7)(i). Furthermore, Article 93(1)(f) should be read with Article 93(7), which allows persons in custody to be transferred to the ICC for the purposes of identification or giving testimony only when they consent to such a transfer. Even when the person in custody agrees to such a transfer, in the absence of the consent of the custodial State, the ICC will not be able to obtain their transfer for the purposes laid down in the Article. Unlike the Ad Hoc Tribunals were States are under an obligation to transfer a detained witness when the Tribunal is satisfied that Rule 90bis(B) has been met, in the case of the ICC, States are under no obligation to transfer a detained witness to give testimony even if such a witness has given his consent to come ­testify.142 Some scholars have maintained that witnesses have a right not to appear before the ICC143 whilst others argue the opposite.144 The former argue that witnesses derive this right from Article 93(7)(a)(i). Under this provision, a 141  Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’ in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) pp. 324–325; See also, Gilbert Bitti, ‘Functions and Powers of the Trial Chamber’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1199–1218 at 1213. 142  See Article 93(7)(a)(ii); Karim Khan and Rodney Dixon, Archbold International Criminal Courts; Practice, Procedure & Evidence (Thomson, Sweet & Maxwell 2005) p. 138; Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 271–272; Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1576. 143  Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) p. 311; Goran Sluiter, ‘Appearance of Witnesses and unavailability of Subpoena powers for the Court’ in Roberto Bellelli International Criminal Justice: Law and Practice from the Rome Statute to its Review (Ashgate 2010) pp. 459–472 at 466–468. 144  Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) pp. 346–355.

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person in custody in the requested state may be transferred to the ICC only if that person freely consents to the transfer. If the transfer of a person in custody to the ICC is dependent on that person’s consent then the same must be true for all other witnesses. Meanwhile the latter oppose the above view and argue that the interpretation of Article 93(7) runs directly counter to Article 64(6)(b) that empowers the Judges to ‘require the attendance and testimony of witnesses’. The Article clearly implies an international obligation upon witnesses to comply with a request of the Judges to appear. The argument is that priority should be given to Article 64(6)(b) State Parties are therefore free to go beyond their limited cooperation duties and may compel the appearance of witnesses before the ICC.145 Nonetheless, emphasis is being laid to the fact that a witness’ right not to appear before the ICC constitutes a significant impediment to a fair and effective international trial; an impediment which cannot be based on legitimate witness interests.146 Notwithstanding lack of a specific power to compel attendance before the Court or giving of evidence generally, State Parties can always go beyond Part 9 on a voluntary basis, if their domestic law permits additional types of assistance to the Court, the Judges may request this pursuant to Article 93(1)(l). The State is however under no obligation to comply and also nothing prevents a State from providing more assistance than it is obliged to.147 Also, Article 93(1)(b) provides for a broader duty for States to assist the Court in the collection of evidence. States are under an obligation to comply with a request of the Court for the ‘identification and whereabouts of persons or the location of items’.148 States should therefore assist the court in the location and contacting of potential witnesses. However Part 9 does not expressly deal with such a form of taking witness testimony, Article 93(1) could be applied but arguably without making the obligation to provide that form of assistance dependent on the absence of a prohibition under the general national law of criminal procedure.149 The Statute gives a conflicting message as to whether 145  Ibid. 146  Claus Kress, “The procedural law of the International Criminal Court in outline: anatomy of a unique compromise” (2003) Journal of International Criminal Justice 603, 616; Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 293–338. 147  Ibid. p. 254. 148  Article 93(1)(a)–(b). 149  Bruce Broomhall and Claus Kress, “Implementing Cooperation Duties Under the Rome Statute: A Comparative Synthesis”, in Claus Kress (eds.) The Rome Statute of the International Criminal Court and Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (Volume II, Editrice il Sirente 2005) pp. 515–543 at 529; Fergal Gaynor &

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the Court may compel an individual to cooperate, the suspect or accused of course being excluded. The cooperation obligation of Part 9 does not extend to private individuals.150 It is surprising the ICC legal regime lacks subpoena powers in relation to witnesses. The compulsory process of international criminal proceedings has been amply demonstrated in international criminal tribunals most especially at the ICTY.151 With its great reliance on witnesses, it is important the Court has such powers, as witnesses may be reluctant to testify for security or other reasons. In Bemba for instance a witness firmly refused twice to travel to The Hague to give evidence while in another instance a State party failed to cooperate with the Court to grant witnesses authorisation to testify at the ICC.152 These witnesses are said to be key or important witnesses, if the Court had powers it could have compelled them to testify at the seat of the Court requesting the States Parties concerned to adhere to their obligations to the Court by ensuring witnesses appear. To ensure that the cosmopolitan intent of the ICC is realised, States Parties have an obligation to guarantee that information that may assist in the acquittal or conviction of an accused person; assist victims to get redress for the harm done to them and assist the Judges to achieve justice and truth is made available to the Court. For the purpose of trial fairness and to ensure all relevant evidence is obtained there is need for the Statute and Rules to be amended so as to give the judicial branch the power to use of compulsory process in the form of subpoena’s and binding orders to guarantee the attendance of a witness. Further, there is no provision that expressly requires States to make their coercive powers available in order to ensure appearance of witnesses before the Court, by way of extension of domestic provisions for compulsory appearance of witnesses before their national courts.153 For States to assist the Court Laura Morris; ‘M. Cherif Bassiouni, The Legislative History of the International Criminal Court’ (2008) Journal of International Criminal Justice 815, 817. 150  Robert Cryer (eds.), An Introduction to International Criminal Law and Procedure (Cambridge University Press 2010) p. 514. 151  Goran Sluiter, ‘Appearance of Witnesses and unavailability of Subpoena powers for the Court’ in Roberto Bellelli International Criminal Justice: Law and Practice from the Rome Statute to its Review (Ashgate 2010) pp. 459–472 at 459. 152  Prosecutor v. Bemba, “Decision on ‘Defence Motion for authorisation to hear the testimony of Witness D04–21 via video-link’ ” ICC-01/05-01/08, 3 April 2013 para. 6 (here­inafter Bemba Video-link Authorisation); Prosecutor v. Bemba, Defence Submissions on the Order of Witnesses, ICC‐01/05‐01/08, 14/05/2013. 153  Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 256 & 260–268; Goran Sluiter, “The ICTR and the  

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and adhere to its request, State Parties are to ensure that there are procedures available under their national laws in order to comply with requests by the Court. Article 88 contains an obligation for States Parties to implement a cooperation regime, providing: ‘States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part [9].’ So far, a number of State Parties have enacted new laws, adapted or extended their existing laws, with necessary modifications, to facilitate the operational role of the ICC.154 As of July 2013, 65 of the 122 State parties have enacted legislation into their domestic law. 35 countries have some form of advanced draft implementing legislation.155 The ICC Implementing laws of some States such as Finland,156 South Africa157 and Sweden158 reject the idea of an individual right of a witness not to appear before the ICC. These States recognise the obligatory nature of an ICC summons to appear as a witness before it and will serve it on the person concerned.159 Germany has not only provided for the possibility to compel the witness to appear before the protection of witnesses” (2005) Journal of International Criminal Justice 962, 976 at 965; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 1020; Goran Sluiter, “I beg you come testify—The problematic absence of subpoena powers at the ICC” (2009) New Criminal Law Review 590, fn. 23–24. 154  Roy S. Lee, ‘States’ Responses: Issues and Solutions’, in Roy S. Lee (eds.) States’ Responses to Issues arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law (Transnational publishers 2005) pp. 1–46 at 36; Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (Transnational Publishers 2002) p. 255. 155  Coalition for the International Criminal Court, Implementation of the Rome Statute available at http://www.iccnow.org/?mod=romeimplementation (last visited July 2013). 156  Finland Act on the Implementation of the Provisions of a Legislative Nature of the Rome Statute of the International Criminal Court and on the application of the Statute, No. 1284/2000, Helsinki 28 December 2000, Section 5. 157  South Africa, The Implementation of the Rome Statute of the ICC Act 27 of 2002, section 18–19; Max du Plessis, ‘South Africa’s implementation of the ICC Statute: an African Example’ (2007) Journal of International Criminal Justice, 469, 469–471. 158  Sweden, Cooperation with the International Criminal Court Act (2002:329) Section 18. 159  Bruce Broomhall and Claus Kress, “Implementing Cooperation Duties Under the Rome Statute: A Comparative Synthesis” in Claus Kress, Bruce Broomhall, Flavia Lattanzi, Valeria Santori (eds.) The Rome Statute of the International Criminal Court and Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (Volume II, Editrice il Sirente 2005) p. 529; Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1577.

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court but also to prove its readiness to further the fairness and efficiency of international proceedings. It has made a step beyond its obligations under Part 9 by providing for the use of enforcement powers to compel the appearance of a witness at the seat of the Court.160 Meanwhile, States such as Australia,161 New Zealand162 and Spain163 have taken steps towards their obligations under Article 93(1)(e), to facilitate the voluntary appearance of witnesses or experts before the Court. Others such as Finland, Spain and Sweden have taken steps to encourage witnesses to testify by providing the right of a witness to advance compensation for losses incurred as a result of his/her travel to the seat of the Court.164 The DRC is in the process of enacting implementing legislation. In order to enable the ICC to carry out in-country activities, it has signed agreements with the Court to such effect. For instance, it signed an interim agreement on judicial cooperation whereby it undertook to cooperate in full with the ICC by establishing the necessary mechanisms for practical assistance.165 Concerns had been expressed, to ensure that the purposes of the Statute are served, DRC Draft legislation should provide in accordance with DRC obligations under Article 64(6)(b) to assist the Court to require the attendance and testimony of witnesses, for compulsory testimony in the DRC by video-conferencing of any prisoner who refuses consent to transfer to the seat of the Court.166 The subsequent practice of State Parties as reflected by their Implementing legislations shows a lack of consistent practice. It is important that States Parties ensure that implementing legislation is sufficiently comprehensive. It should not only be the question of enacting implementing legislations but also a question of the quality and application of such legislation. Without adequate provisions to govern the witness scheme, cooperation may be difficult, the practice of States Parties should be consistent and be general that’s to say common to all the States Parties so as to give rise to binding procedural law. It could be useful for State Parties to have a mechanism for sharing information, 160  Ibid. 161  Australian, International Criminal Court Act 2002, Section 69(2)3). 162  New Zealand International Crimes and International Criminal Court Act 2000, Section 92. 163  See Spain Ley orgánica 18/2003, de 10 de diciembre 2003 de Cooperación con la corte Penal Internacional. 164  Section 6 Finish legislation and Section 18 Swedish legislation. 165  Redress Report p. 60, fn. 240. 166  Amnesty International: Democratic Republic of Congo, Comments and recommendations of the July 2003 draft law implementing the Rome Statute of the International Criminal Court, available at http://www.amnesty.org/en/library/info/AFR62/008/2004 (last visited August 2010).

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best practices and experiences so as to have a uniform practice when it comes to assisting the ICC with witnesses.167 5.2.3 General Obligation to Cooperate The ICC, as a treaty-based Court, has incorporated into the Statute the obligation of States parties to cooperate with it directly. The express obligation to cooperate with the Court, which, is in addition to the fundamental requirement to fulfil obligation in any treaty in good faith (pacta sunt servanda) applies to all aspects and stages to the Court’s procedures and to the organs of the Court.168 Upon signing and ratification each State is under the duty to cooperate with the ICC in the manner and under the conditions set out by the Statute and RPE. States are under the general obligation to assist the Court fully in its investigations and prosecutions of crimes within its jurisdiction pursuant to Article 86.169 Hence States are to ensure that national law allows all specified forms of cooperation. States are obligated to grant any type of assistance to the Tribunal that is not prohibited under national law. Article 93(1)(l) is however, a catch-all provision that sets out an obligation on States to comply with the request of the Court for any type of assistance not listed in paragraph (1)(a)–(k) which is not prohibited by the law of the requested State.170 Therefore should any such type of assistance be prohibited under the national law of the requested State, the request may be denied. The State who is being asked for assistance by

167  See Report of the Bureau on cooperation; “Report on Cooperation” International Criminal Court, Assembly of States Parties, ICC-ASP/6/21 pp. 3 & 6. 168  Frank Terrier, ‘Powers of the Trial Chamber’, in A. Cassesse, P. Gaeta and J. R. W. D. Jones (eds.) The Rome Statute of the International Criminal Court: A Commentary (Oxford University press 2002) pp. 1259–1276 at 1272–1273; Goran Sluiter, “State Cooperation with the International Criminal Court”, in Rodrigo Yepes-Enriquez, Lisa Tabassi, Treaty Enforcement and International Cooperation in Criminal Matters: With special reference to the Chemical Weapons Convention (Cambridge University Press 2002) pp. 127–138 at 128; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pp. 973–976. 169  States have the duty to cooperate with the ICC on a general basis to assist in its investigations and prosecutions pursuant to Article 93(1)(b). 170  See Robert Cryer (eds.) An Introduction to International Criminal Law and Procedure (Cambridge University Press 2010) p. 511; Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1579.

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the Court has to consider whether the assistance can nevertheless be provided subject to specific conditions, or at a later date or in an alternative manner.171 It can be argued that the ICC can request compulsory attendance if domestic law permits this. The State Party shall cooperate with the ICC request for the attendance of a witness to testify, if it is not prohibited under its national law. The State may seek to prevent a witness from testifying if such testimony prejudices its national security.172 Consequently, whether witness testimony or evidence is taken at the seat of the Court, by video-technology, voluntarily or in the territory of the requested State by its authorities, protection of witnesses may be necessary and assistance may be sought by the Court for this purpose under Article 93(1)(j). Although Article 93(1)(e) only mentions the obligation of States to facilitate the voluntary appearance of persons as witnesses or experts, the basic obligation in Article 86 coupled with the power of the Court pursuant to Article 64(6)(b) requires States to ensure the compulsory attendance and testimony of witnesses or experts before the Court at its seat or in video conferences. The wordings of these provisions all indicate the imposition of unequivocal legal obligations upon States to cooperate with the ICC.173 Article 97 provides for State parties to consult with the Court without delay in order to resolve any problems, which may impede or prevent the execution of requests. Failure to cooperate in relation to witnesses by States Parties will not be directly sanctioned by the Court. The Court may only request such assistance and may not give orders to States to cooperate. State parties will only have to cooperate out of good faith. Nevertheless, the Court may refer the matter to the ICC Assembly of States Parties (ASP) or to the UNSC who might assist the Court using its binding authority pursuant to Chapter VII.174 This may happen if the UNSC referred the case to the Court; the UNSC empowers the Court, by placing binding obligations on UN Member States to render particular forms of cooperation to the ICC. However, the ICC, as a self-standing international organisation with international legal personality outside of the UN system cannot be bound by decisions on the UNSC, which in any event only 171  Analisa Ciampi, “Other forms of Cooperation,” in A. Cassesse, P. Gaeta and J. R. W. D. Jones (eds.) The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) pp. 1705–1747 at 1733. 172  Article 72(4). 173  Goran Sluiter, “State Cooperation with the International Criminal Court” in Rodrigo Yepes-Enriquez, Lisa Tabassi Treaty Enforcement and International Cooperation in Criminal Matters: With special reference to the Chemical Weapons Convention (Cambridge University Press 2002) p. 133. 174  Article 87(7).

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binds Member States of the UN under Article 25 of the UN Charter. The UNSC could pass a resolution under Chapter VII requiring UN Member States to provide full cooperation to the ICC in relation to a particular situation.175 It may require States to make any necessary amendments to their domestic legislation to enable particular forms of cooperation. The Court would then request cooperation from States on the basis of their obligations under the relevant UNSC resolution and by virtue of its powers under Part 9 to request “any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court”.176 The UNSC resolution would therefore in effect be imposing an obligation on States to amend their domestic legislation to enable the Court to make such requests for assistance. States not Party to the Statute are under no obligation to cooperate with the Court.177 Nonetheless, their assistance is of utmost importance since the Court has jurisdiction over international crimes. The Court may require the testimony of a potential witness located in a State not a party to the Statute. For instance the USA is not a party to the Rome Statute and it is under no obligation to cooperate with the ICC. Nevertheless, the USA may need to cooperate with the Court because it may have personnel’s who could act as witnesses in cases before the Court. Such States are guided by the principle that treaties do not create either rights or obligations for third States without their consent (pacta tertiis nec nocent nec prosunt).178 Thus Article 12(3) provides for a nonState party to accept the jurisdiction of the Court and cooperate with the Court in accordance with Part 9. Furthermore, Article 87(5) provides for the Court to invite States not party to the Statute to provide assistance on the basis of an ad hoc agreement.179 To conclude, cooperation between the ICC and States is an essential basis for the effective functioning of the Court. It should be carried out in the interest of and through the mandate of the Court. Again, States should be reminded of their obligation to cooperate at all times. Unlike national jurisdictions, there 175  Either one referred by the UNSC, or it could also do this in relation to other situations not referred by the Council. 176  Article 93 (1)(l). 177  Article 79. 178  See VCLT Article 34. 179  See Goran Sluiter, “State Cooperation with the International Criminal Court” in Rodrigo Yepes-Enriquez, Lisa Tabassi Treaty Enforcement and International Cooperation in Criminal Matters: With special reference to the Chemical Weapons Convention (Cambridge University Press 2002) pp. 127–138.

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is no enforcement mechanism to ensure witnesses assist the Court. Therefore, the Court will rely on their assistance for the appearance of witnesses and this assistance may mostly be secured by international cooperation. Every State Party should have adequate procedures in place to assist the Court in its investigations and the gathering of evidence most especially possibility of witnesses to provide their testimony. States Parties should review their implementing legislation with a view to improving its function with regard to assisting the Court when it comes to witnesses. States Parties who have not yet implemented legislation should do so in order to facilitate cooperation with the Court. It may also be required that States Parties become parties to the Agreement on the Privileges and Immunities of the International Criminal Court (API).180 This agreement enables the Court to carry out its functions unimpeded on the territory of States and allows the travel of witnesses through their territories to the Court. 5.3

The Right to Protection181

The ability to secure the attendance at trial of witnesses is directly related to the witness confidence in the institution.182 The willingness of a witness to come testify will depend on the safeguards in place to protect him/her. It is mandatory for the Court to provide for protective measures, this responsibility constitutes an affirmative obligation.183 The Appeals Chamber in Katanga held that ‘protection should, in principle, be available to anyone put at risk by the investigations of the Prosecutor and ruled that the specific provisions of the Statute and the Rules for the protection not only of witnesses and 180  Up until May 2013, 72 States had ratified and acceded to this Instrument. See Assembly of States Parties Update: Rome Statute and other agreements available at http://www.icccpi.int/en_menus/asp/RomeStatute/Pages/default.aspx (last visited July 2013). 181  As stated at the introduction of the book protection will not be fully covered as the study’s focus is mainly on witness obligations/crime and obligation to punish. See Bibliography for further reading. 182  Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three difficulties encountered by Prosecutors in International Criminal Proceedings,’ (2004) Journal of International Criminal Justice 403, 425. 183  Mohamed Othman, “The ‘protection’ of refugee witnesses by the International Criminal Tribunal for Rwanda” (2002) International Journal of Refugee Law 495, 496; Antonio Cassese, “The International Criminal Tribunal for the Former Yugoslavia and human rights” (1997) European Human Rights Law Review 329, 349; Christine M. Chinkin, “Due Process and Witness Anonymity” (1997) American Journal of International Law 75, 76.

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victims and members of their families, but also of others at risk on account of the activities of the Court are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court.184 The Statute, RPE, ICC and Registry Regulations all contain provisions for a high standard of protection and support for witnesses. Article 68, Rules 87 and 88, as well as the VWU, afford a wide range of measures and services, which are not prejudicial to and inconsistent with the rights of the Accused. Besides, protection of witnesses is also a special responsibility of the Prosecutor pursuant to Article 54(1)(b) and the Chambers in accordance to Articles 57(3)(c) and (e); 64(2) and (6)(e);185 65(4); 75; 87(4); 93(1)(j) and 110(4)(b). These provisions are significant, for the successful functioning of the Court, aiming to ensure that victims can participate in proceedings and witnesses testify freely and truthfully without fear of retribution or suffering of further harm.186 The VWU provides long and short-term plan for adequate protective measures and security arrangements, counseling and other appropriate assistance for witnesses and victims.187 Lubanga Judges summarised it’s functions as assisting witnesses when they are called to testify before the Court; taking gender sensitive measures to facilitate the testimony of victims of sexual violence at all stages of proceedings; informing witnesses of their rights under the Statute and Rules; advising witnesses where to obtain legal advice for the purpose of protecting their rights in particular in relation to their testimony; assisting witnesses in obtaining medical, psychological and other ­appropriate 184  Prosecutor v. Katanga et al., Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, ICC-01-04-01-07-475, 13 May 2008, paras. 44 & 54–55 (hereinafter, Katanga Judgement appeal against decision of Pre-Tiral I); Katanga et al. Transcript pp. 9–10; Prosecutor v. Katanga et al., Decision on the admissibility for the Confirmation hearing of the Transcripts of interview of Deceased Witness 12, ICC-01/04-01/07-412, 18 April 2008, p. 8 (hereinafter, Katanga Admissibility of Transcripts of Deceased Witness). 185  Prosecutor v. Lubanga, Decision on the Prosecution’s Applications to vary Protective Measures under Regulation 42 of 14 July and 17 August 2009, ICC-01/04-01/06, 22 February 2010, para. 17 (hereinafter, Lubanga Regulation 42 Decision). 186  See ICC website; UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of power UNGA Resolution 40/34 29 November 1985, Article 6(d). (For further reading on protection see Bibliography). 187   Articles 43(6), see also Rule 17; Registry Regulation 96(1); Silvia A.Fernandez de Gurmendi, ‘Victims and Witnesses in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) pp. 427–491; Prosecutor Report on Activities p. 3.

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assistance and providing witnesses with adequate security measures and formulating long term plans for their protection.188 It is a neutral organ, which serves the prosecution, the defence and the Legal Representatives of the Victims, in performing its work it respects and recognises the interest of witnesses.189 5.4

Responsibility of Witnesses

In Katanga the Judges held that the role of a witness is to give evidence in the interest of justice, in principle, witnesses testify to what he/she remembers having observed.190 This section seeks to establish the responsibility of witnesses before the ICC. It discusses the power of the Judges to require witness attendance; examining the legislative history on testimony, methods in which testimony could be given and procedures used by the Judges to establish their role as fact-finders. 5.4.1 Witness Attendance Article 64(6) provides: ‘In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary . . .(b) Require the attendance and testimony of witnesses . . . by obtaining, if necessary, the assistance of States as provided in this Statute . . .’ 5.4.1.1 Drafting History The present form of Article 64(6)(b) appeared as Article 38(5)(b) of the ILC draft.191 The drafters were of the opinion that the Court should itself have the right to call witnesses and ask questions. Article 38(5) provided that “the Chamber shall subject to this Statute and rule have inter alia the power on the application of a party or its own motions to, b) require the attendance and testimony of witnesses.192 In the initial stages of the Ad hoc Committee 188  Lubanga Decision on witness familiarization and proofing para. 22; Lubanga decision regarding the practice to prepare and familiarise witnesses para. 29. 189  Rule 18(b); See also Chap. 3 of the Registry Regulations. 190  Katanga directions in accordance with rule 140 para. 109. 191  Report of the International Law Commission on the work of its forty-sixth session, UNGA A/CN.4/L.491/REV.1 (8 July 1994); see also Report of the International Law Commission on the Work of Its Forty-sixth session, 2 May–22 July 1994, Supp.No. 10 at 110; UN Doc A/49/10; UNGA A49355 (1 September 1994) p. 20. 192  Prepcom Report Vol. II pp. 170–192; Hans-Jorg Behrens, “The Trial Proceedings” in Roy S. Lee (eds.) The International Criminal Court, The Making of the Rome Statute: Issues,

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and Prepcom many proposals were added to the list of possible functions and powers of the Trial Chamber. When the proposals where compiled in 1996, Article 38 alone covered no less than 23 pages.193 Some delegates were concerned about the problem whether attendance of witnesses could be compelled directly or through State authorities.194 The remark was made that the Statute should provide for exceptions to the obligation of a State to comply with a request for assistance from the prosecutor. In this context, reference was made to constitutional barriers to compellability of witnesses, as well as to privileges exempting individuals from the obligation to testify.195 Thereby raising the problem of subjecting witness to effective regulation, delegates observed that in many countries, it was not constitutionally possible to force a citizen to leave the country to attend judicial proceedings in another country.196 A proposal was to obtain the testimony by way of a request for assistance to the State of residence of the witness. The requested State would use the means of compulsion allowed under its internal law and provide the ICC with a transcript of the examination and cross-examination. It was also suggested that the relevant rules should be drafted flexibly to allow a judge or prosecutor of the ICC to be present and to play an active role. In highly exceptional cases, some measures of indirect compulsion in the form of a fine or imprisonment could be taken by the requested State to compel attendance of a witness.197 Remarks were made at Prepcom to the fact that Article 38(5)(b), “should be amended to refer to witnesses who appear before the court and a new paragraph c) bis should be added to enable the chamber to request the assistance of States in taking witness testimony and producing documents

Negotiations, Results (kluwer law international, 1999) pp. 238–246 at 239; Goran Sluiter, “I beg you, please come testify—The Problematic Absence of Subpoena Powers at the ICC” (2009) New criminal law review 590, 596 (hereinafter Sluiter “I beg you, please come testify”—2009). 193  Ibid. 194  Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UNGA Supplement No. 22 A/50/22,p. 43 para. 233 (hereinafter Ad Hoc Report No. 22 A/50/22). 195  Ibid. p. 42 para. 227; Ad Hoc Committee on the Establishment of an International Criminal Court Provisional estimates of the staffing, structure and costs of the establishment and operation of an International Criminal Court, Preliminary report of the SecretaryGeneral A/AC.244/L.2, 20 March 1995. 196  Ad Hoc Report No. 22 A/50/22. 197  Ibid.

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or other evidence outside of court.’198 At the Rome conference ‘differences of views appeared between common law countries and France on proposals based upon civil law especially the power of the Trial Chamber to order the production of evidence.199 The French delegation were of the view that witnesses or experts may not be compelled to testify at the seat of the Court, if they do not wish to travel to the seat, their testimony should be taken in the country in which they reside or in some other place which they may determine by common accord with the Court.200 Other debates followed and the structure of the article remained unclear, proposals tabled that the Trial Chamber may of its own motion call witnesses or experts to appear or have placed before it any new evidence which it deems useful for the ascertainment of the truth.201 After several debates and proposals, a group of interested delegations submitted a new and substantially reformulated proposal for Article 64.202 The proposal proved to be largely acceptable and was subject to some changes in the drafting, which was included in the final text of the Statute.203 The present form of Article 64(6)(b) only emerged during the Third week of the Rome Conference204 containing the requirement for witness attendance by obtaining if necessary the assistance of States.205 According to Delmas-Marty, Article 64(6)(b) if compared with the text of the Ad Hoc 198  Preparatory Committee on the Establishment of an International Criminal Court: Draft Report of the Preparatory Committee, UNGA A/AC.249/L.15, 23 August 1996, p. 13. 199  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 763. 200  Article 74, Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute of the ICC, Working Paper Submitted by France UNGA A/AC.249/L.3 (6 August 1996) p. 57. 201  Ibid. Article 121; see also Hans- Jorg Behrens, “The Trial Proceedings” in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) p. 239. 202  Ibid., United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Committee of the Whole Working Group on Procedural Matters, Text put forward by a group of interested Delegations on Article 64, A/CONF.183/C.1/WGPM/L.41. 4 July 1998 (hereinafter, Working Group on Procedural Matters Article 64, A/CONF.183/C.1/WGPM/L.41). 203  Hans- Jorg Behrens, “The Trial Proceedings” in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) p. 240. 204  Ibid.; see also Sluiter, “I beg you, please come testify”—2009, p. 597; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 768. 205  Working Group on Procedural Matters Article 64, A/CONF.183/C.1/WGPM/L.41 p. 2.

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tribunals, the solutions elucidated by these tribunals has been transposed to the ICC.206 Also, the separate negotiation processes within the working groups charged with part 6 and 9 of Statute explain some inconsistency in the handling of the subpoena powers.207 Sluiter observes that the power to compel was not significantly changed or challenged throughout the negotiating process and appeared to have found codification without controversy in Article 64(6)(b).208 5.4.1.2 Analysis The text gives the Judges the powers to require witnesses to attend and testify in court, however it is to do so by obtaining if necessary the assistance of States. Article 69(3) clarifies that this power is bestowed on the Judges in order to allow it to determine the truth.209 In Katanga the prosecution argued that Article 64(6)(b) could be interpreted as allowing the Chamber to issue an order requiring the attendance of a witness by obtaining, pursuant to Article 93(1)(l), the assistance of the State on whose territory the witness is located; unless, pursuant to Article 93(1)(l) and (1)(3), this would be prohibited by the law of the requested State.210 The Judges may be requested by either the Prosecutor or defence counsel to employ this power after failing to secure the attendance of any witness. There is therefore no express or implied power given to the Judges to issue summons or subpoenas to witnesses. As a general rule, Judges will only call witnesses whose testimony can make a genuine contribution to the ascertainment of the truth. The legal representatives must clearly explain the relevance of the proposed testimony in relation to the contentious issues of the case.211 Since there is no provision for subpoena in principle parties will have to bring their own witnesses to the Court on a consensual basis,

206  Mireille Delmas-Marty, “The Contribution of Comparative Law to a Pluralist Conception of Criminal Law” (2003) Journal of International Criminal Justice 13, 21. 207  Sluiter, “I beg you, please come testify”—2009 p. 595. 208  Ibid. pp. 596–597. 209  Simon De Smet, ‘A structural analysis of the role of the Pre-Trial Chamber in the factfinding process of the ICC,’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) pp. 405–440 at 418–420. 210  Prosecutor v. Katanga et al., Prosecution Response to Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a), ICC-01/04-01/07, 30 March 2009, para. 89 (hereinafter Katanga Prosecution Response to Motion Challenging the Admissibility March 2009). 211  Katanga directions in accordance with Rule 140, para. 47.

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only when a witness is before the Court does him/her become compellable.212 Rule 65(1) provides that ‘a witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules, in particular Rules 73, 74 and 75’. The lack of reference to the word subpoena or summons creates doubts as to whether Article 64(6)(b) really empowers the Judges to directly oblige the witness to appear before it if compared with Article 58(7) which provides for the issue of summons to a person suspected of committing a crime within the Court’s jurisdiction.213 It is argued that the wordings of Article 64(6)(b) actually gives some possibility to compel witnesses and that this inconsistency with Part 9 should not be widened. The text could very well be the basis for an international obligation of witnesses toward the Court to appear.214 Gilbert Bitti submits that Chambers can still summon witnesses, it follows from Part 9 simply that a State party is not under an obligation to compel the witness’s appearance before the Court.215 Alexander Zahar argues that the concept voluntary means no more than the formal instrument of compulsion, such as a subpoena, it does not mean the absence of compulsion.216 However Sluiter argues that the language of Article 64(6)(b) is not clear, it does not follow from it that a direct obligation toward witnesses is envisaged, “requiring the attendance” is not identical to “ordering” or similar language. He suggests that one must therefore construe this wording in light of other relevant provisions.217 When read together with Rule 65 and Articles 93 (1)(e) the ICC can 212  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 842; Claus Kress, ‘Witnesses in Proceedings Before the International Criminal Court’ in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.) International and National Prosecution of Crimes under International Law: Current Developments (Berlin Verlag Arno Spitz GMBH 2001) pp. 309–383 at 313. 213  Stuart Beresford, ‘Child witnesses and the international criminal justice system: does the International Criminal Court protect the most vulnerable?’ (2005) Journal of International Criminal Justice 721, 732. 214  Claus Kress and Kimberly Prost, “Article 93 Other Forms of Cooperation”, in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1569–1588 at 1576–1577. 215  Gilbert Bitti, “Article 64: Functions and powers of the Trial Chamber” in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1199–1218 at 1213. 216  Alexander Zahar, ‘International Court and Private Citizen’ (2009) New Criminal law Review 569, 587. 217  Sluiter I beg you, please come testify 2009, p. 600; see Robert Cryer (eds.), An Introduction to International Criminal Law and Procedure (Cambridge University Press 2010) p. 514.

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order witness to appear but cannot require a State to deliver a non-compliant witness.218 Sluiter argues that as a result of the absence of subpoena power both the quality of fact finding and the accused right to a fair trial are seriously ­jeopardised.219 According to Schabas although the lack of subpoena powers may create hardship for the defence, it does not seem that it can argue that the right to a fair trial is being denied because of the impossibility of obtaining witnesses and compelling their attendance in court.220 In my view, the impact of a complete absence of subpoena powers has to be properly assessed by States Parties. The ICC was created by States Parties its legal jurisdiction is dependent on powers granted to it by them hence, Articles 93 (1)(e) and 64 (6) (b) must be amended. Sluiter suggests that, Article 64 should provide in less ambiguous terms that the Trial Chamber can directly order a witness to appear before it and to give testimony. It should be clear that such an order creates a direct obligation for the witness.221 This power should be available in the case of a witness present on the territory of a State party and a witness who is the national of a State party or any other State having accepted the jurisdiction of the Court. Hereby the jurisdictional regime of Article 12(2) is followed.222 State parties should also enact appropriate legislation to compel witnesses whose testimony might be taken by national authorities of the State party.223 States have a duty to ensure that information possessed by an individual be made readily available to the Court. Any person considered, as a witness must be under an obligation to appear in person and testify. As indicated in Chapter one the ICC is a cosmopolitan institution vested with authority and moral mission to investigate, prosecute and punish individual perpetrators of serious international crimes, the Judges therefore need judicial powers and authority 218  Guido Acquaviva & Nancy Combs (eds.), ‘Trial Process’ in Goran Sluiter (eds.) International Criminal Procedure: Rules and Principles (Oxford University Press 2013) pp. 489–878 at 713; Robert Cryer (eds.), An Introduction to International Criminal Law and Procedure (Cambridge University Press 2010) pp. 440 & 514. 219  Sluiter I beg you, please come testify 2009 pp. 591 & 605. 220  William Schabas, ‘Article 67: Rights of the Accused’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1247–1274 at 1265. 221  Sluiter I beg you, please come testify 2009, p. 607; see Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (Martinus Nijhoff Publishers 2013) p. 246. 222  Ibid.; see also p. 592. 223  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 768.

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to call on any person who has information that may assist them carry out this mission. The law must be changed expressly stating the authority to require or order a prospective witness to attend at a nominated place and time for the preparation or conduct of a trial. To make it effective, it must include that the order be a binding order issued under threat of penalty for non-compliance, hence, included as a crime under Article 70 for non-compliance. To conclude, the Judges may intervene at all times and order the production of all evidence that it considers necessary for the determination of the truth, in accordance with Articles 64(6) (d) and 69(3).224 The right to introduce evidence during trials is not limited to the parties not least because the Court has a general right that is not depended on the cooperation or the consent of the parties to request the presentation of all evidence necessary for the determination of the truth pursuant to Article 69(3).225 The Court may also decide to call its own witnesses for instance in Lubanga the Judges elected to instruct an expert-witness who was a UN Special Rapporteur.226 They shall only consider calling the witness if in due course it considers the step necessary, pursuant to Article 64(6)(b).227 If the Chamber considers that the proposed witness may indeed provide the Chamber with important information, that was not hitherto included in the evidence called by the parties, it may decide to call the witness on its own motion, in accordance with Articles 64(6)(b) & (d) and 69(3).228 5.4.2 Methods of Providing Testimony As earlier observed, the assistance of witnesses to provide evidence is very crucial as the search for the truth is the fundamental or primary concern of the Court.229 The Judges enjoy a significant degree of discretion in considering all types of evidence.230 Witnesses can testify before the Court in person, subject to the possibility of testimony being delivered by electronic or other special 224  Katanga directions in accordance with Rule 140 para. 3. 225  Lubanga decision on victims participation paras. 108 & 121. 226  Lubanga Transcript/2008 pp. 17–18; Lubanga Instructions to the Court’s expert on background and context 17 December 2008; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 843. 227  Prosecutor v. Lubanga “Preliminary and Final Decisions on the group of potential court witnesses”, ICC-01/04-01/06, 25 June 2009, paras. 8 & 16 (hereinafter lubanga preliminary and final decision June 2009). 228  Katanga directions in accordance with rule 140 para. 46. 229  Article 69(3). 230  Prosecutor v. Lubanga Decision on the Admissibility of four Documents, ICC-01/04-01/06, 13 June 2008, para. 24 (hereinafter, Lubanga Decision on the admissibility of four documents 2008).

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means in order to protect them.231 Article 69 provides: (1) Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. (2) The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. . .” 5.4.2.1 Drafting During negotiations, delegates were flexible to find a central point and a genuine spirit of compromise with respect to the form of witness testimony. The provision in Article 69(1) is virtually identical to that of the ILC draft which appeared as Article 44(2).232 At Prepcom many delegates considered this subject would be better dealt with in the rules.233 At Rome a footnote was included indicating that the rules could exempt persons from giving an undertaking in some cases.234 The imposition of an obligation upon citizens to testify at the seat of the Court was met with strong opposition. Delegates proposed that the seat of the Court could be moved in circumstances when the bulk of evidence and witnesses where found in one country, or testimony could be got by way of a live video-link hooked up with the court or, subject to the agreement of the State concerned, the hearing of evidence by the court on the territory of the said State.235 Delegates were concerned that the stringent obligations to cooperate under Part 9, particularly with respect to surrender

231  Article 68(2); William A. Schabas An Introduction to the International Criminal Court (Second Edition, Cambridge University Press, 2004) p. 153. 232  Report of the International Law Commission on the work of its Forty-fifth Session, A/48/10, 3 May to 23 July 1993, p. 122; Donald K. Piragoff, “Article 70 Offences against the administration of justice”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1338. 233  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 838. 234  Report of the Working group on procedural Matters UN Doc A.Conf.183/C.1/WGPM/L.2/ Add.6, p. 5 fn. 6. 235  Ad Hoc Report No. 22 A/50/22.

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of nationals should not apply to non-core crimes.236 It was in particular the obligation to surrender persons to the Court that worried them.237 Doubts were expressed as regards the possibility of the court’s ordering the arrest and transfer of a reluctant witness or non-accused person. The US delegation, expressed concerns, that there could be situations where the Court may very much desire the presence of a witness, but that witness absolutely refuses to travel to the site of the trial. They were unconvinced that the solution should be to have such persons arrested and forcibly transported to the Court. It seemed preferable to assure that the Court be able to receive testimony taken outside its presence, and with the assistance of States. They observed that many national courts would very much resist ordering the arrest and transport of a witness, particularly if there had been no showing that the alternative of taking his testimony at home was completely unfeasible.238 The representatives of Sweden and Austria supported the US view and agreed that the Court should develop a transfer system that allowed for as few exceptions as possible. These delegations were of the position that they will not support any provision allowing for the arrest of witnesses to force them to appear before the Court. They favoured a flexible system of legal assistance, such as the use of testimony gathered by video or telephone link.239 The text in Article 69(2) was added at the Prepcom session in 1996, it was derived from Article 122 of the French draft and the Japanese draft.240 The French proposal provided in Article 122(1) that ‘in principle the Trial Chamber shall hear witnesses in person. However, in exceptional circumstances and in the interest of justice, the Trial Chamber may, of its own motion or at the 236  Kenneth Harris, “Offences against the administration of justice,” in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) p. 921; Otto Trifferer, ‘Sanctions for misconduct before the Court,’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 925–935. 237  Hakan Friman ‘Offences and Misconduct against the Court’ in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) pp. 617–618. 238  Apprehension and surrender, Cooperation between States and the ICC Remarks of the U.S. Delegation April 8, 1996 p. 3 para. 4. 239  Preparatory Committee on the International criminal Court Discusses Draft Articles on Arrest, Pre-trial Detention 9 April 1996 Press Release L/2780. 240  Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute of the ICC, Working Paper Submitted by France United Nations General Assembly, A/AC.249/L.3, 6 August 1996, p. 74.

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request of the prosecutor or the accused, order that a deposition be taken for the purposes of the trial in the manner provided in Article 118’.241 The French expressed the view that in order to guarantee the safety of witnesses and experts any other means may be used to take their testimony while preserving their anonymity.242 The Japanese proposal set forth criteria for the admissibility of other means of testifying, it proposed that the accused shall be permitted full opportunity to examine all witnesses, and he/she shall have the right of compulsory process for obtaining witnesses on his/her behalf at public expense.243 Some delegates expressed their concern about the possibility of allowing witnesses to testify without revealing personal data.244 The two proposals were finally merged, it was emphasised that in order to make sure that the rights of the accused was not prejudiced by the use of modern technology the last sentence was added to paragraph two.245 Article 44(1) bis provided: The testimony of witness at trial shall be given in person, except to the extent provided by the measures set forth in Article 43 or in the rules of evidence. These measures shall not be [prejudicial to] [inconsistent with] the rights of the accused.246 Article 69 was further debated in the working group on procedural matters during the 1997 and 1998 sessions.247 A decision was taken to add specific references to video and audio technology and to clarify the scope of the oral and recorded testimony. The criteria for allowing the use of these technologies were left to the rules.248

241  Ibid., see also Prepcom Report Vol. II p. 220. 242  Ibid. p. 57. 243  Preparatory Committee on the Establishment of an International Criminal, Tentative draft on procedure Working paper submitted by Japan United Nations General Assembly, A/AC.249/L.7 13 August 1996; Prepcom Report Vol. II, p. 217. 244  Ibid. p. 30. 245  Article 44(1) bis, Preparatory Committee on the Establishment of an International Criminal 1–12 December 1997 decisions taken by the preparatory Committee at its session held from 1–12 1997, A/AC.249/1997/L.9/Rev.1 18 December 1997, p. 30. 246  Ibid. 247  The Working Group submitted a Preliminary Draft consolidated text to the Preparatory Committee on 25 March 1998, A/AC.249/1998/WG.4/CRP.2 as article 65; Hans-jorg Behrens, “The Trial Proceedings,” in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) pp. 242–244. 248  Art. 62(44) Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Procedural Matters Preliminary draft consolidated text Article 62(44) Evidence, A/AC.249/1998/WG.4/CRP.2 25 March 1998 p. 1.

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It was proposed that the rules could permit the use of video or audio technology when the witness was unable to attend the Court due to illness, injury, age or other justifiable reason.249 At Rome the article was debated in great details,250 the delegates had different views and preferences. The words prejudicial and inconsistent were bracketed in the draft submitted to the conference251 and it was decided to keep both alternatives in the text but to link them by the disjunctive word ‘or’ although the meaning was almost the same.252 With regards to pre-recorded testimony it was a question whether pre-recorded testimony may be brought under the regime of Article 56.253 This was asserted by a number of delegates, Italy for instance made two proposals for a rule, which would have made this explicit.254 A compromise was finally attained Brady observes that Article 69 is a delicate combination of civil and common-law concepts of fair trial and due process.255 While Cassese states the article substantially takes up and restates the practice of international criminal tribunals.256 Finally, in debating provisions on Article 54257 doubts were expressed about the possibility that witnesses could be arrested to obtain their presence before the Court. Article 54 was intended to provide for the situation where a State cannot allow the evidence to be physically heard by the Court on its territory. In such a case a proposal was made that the Court should be able to hear testimony that was electronically recorded. A commentary to the draft on this provision alludes to agreement between the Court and States.258 249  Ibid. fn. 2 p. 1. 250  Article 69(2) Evidence United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June–17 July 1998, A/CONF.183/C.1/ WGPM/L.34, 29 June 1998. 251  Article 69(2) Prepcom Report Vol. II. 252  Ibid. p. 207, Hans-jorg Behrens, ‘The Trial Proceedings’ in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) p. 244. 253  Present Article provides for the Role of the Pre-Trial Chamber in relation to a unique investigative opportunity. 254   UN DOC.PCNICC/2000/WGRPE (5)/DP.3, UN DOC.PCNICC/2000/WGRPE (6)/DP.3, 13 March 2000. 255  Helen Brady “The System of Evidence in the Statute of the International Criminal Court,” in Flavia Lattanzi and William A. Schabas (eds.) Essays on the Rome Statute of the International Criminal Court (Vol. I Editrice il Sirente 1999) pp. 279–302 at 286. 256  Antonio Cassese, International Criminal Law (Oxford University Press 2003) p. 417. 257  Present article provides for the duties and powers of the Prosecutor with respect to investigations. 258  Article 54, Judicial (Mutual) Assistance, Meeting of Experts on the Establishment of a Permanent International Court International Cooperation and Judicial Assistance prepared by Pieter Kruger, South African Department of Foreign Affairs Doc. No. 19960710.

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5.4.2.2 Analysis The procedure in the Statute for giving of witness testimony reflects a range of legal traditions, although it has been strongly influenced by common-law approaches.259 Meaning that, in general, a witness will give evidence in person, in open court, with both parties present and in sight of the accused. In Katanga it was held, Article 69 provides for the principle of free assessment of evidence. It is up to the competent Chamber to decide on probative value of any piece of evidence introduced for the purpose of the confirmation hearing or the trial.260 Witnesses have an obligation to provide truthful testimony in accordance to Article 69(1), Rule 66(1) provides that ‘except as described in sub-rule 2, every witness shall, in accordance with article 69, paragraph 1, make the following solemn undertaking before testifying: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.” Everyone who appears before the ICC will be presumed to be competent to give evidence at the time they make the solemn declaration.261 According to Terrier the oath before the Judges, to tell the truth the whole truth and nothing but the truth is a worldwide immemorial practice. It is held to rid the witness of all feelings of resentment, revenge or antipathy or on the contrary of friendship or sympathy.262 Lubanga Judges have held that individuals cannot be compelled to cooperate with the Court, and the identity and the testimony of a witness will only have evidential value of significance if he/she agrees to give evidence under oath, so that the testimony can be realistically investigated by questioning.263 An exception to this law is found in Rule 66(2), which is applicable to vulnerable witnesses such as children if unable to understand the scope of the obligations resulting from the oath should be exempted from it. A child who does not understand the nature of the solemn declaration may be permitted to testify without that formality if the Chamber is satisfied

259  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 837. 260  Katanga Decision on Evidentiary Scope para. 74. 261  Stuart Beresford, ‘Child Witnesses and the International Criminal Justice System: Does the International Criminal Court Protect the Most Vulnerable?’ (2005) Journal of International Criminal Justice, 721, 738; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pp. 838–839. 262  Frank Terrier “The Procedure before the Trial Chamber,” in A. Cassese, P. Gaeta and J. R. W. D. Jones The Rome Statute of the International Criminal Court: A Commentary (Vol. II Oxford University Press 2002) pp. 1277–1318 at 1301. 263  Lubanga Decision on Intermediaries para. 50.

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that the child is able to describe the matters of which they had knowledge and understands the meaning of the duty to tell the truth.264 Before starting to testify, the witness is also informed of the sanctions applicable under Article 70(1)(a).265 In Katanga, it was decided that before allowing the examination of a witness to commence, the Presiding Judge will invite the witness to make the solemn declaration in accordance with Rule 66 and will inform the witness that it is an offence under the Statute to give false testimony, which is subject to possible sanctions.266 The witness remains under oath until the end of the proceedings. It is not necessary that the witness repeat the solemn declaration after each adjournment.267 However, in Lubanga the Judges felt it would be wholly inappropriate at the beginning of a witness’s testimony (many of whom are nervous) for the Judges to issue a warning of the possibility that they could be charged with an offence of giving false testimony if they do not tell the truth and decided instead that such advice should be given by a lawyer in a private setting, coolly and quietly and in an unhurried way.268 This decision is questionable as the Judges are a symbol of truth and represent this cosmopolitan court. They could assert the role of a moral teacher argued in chapter one before the witness testifies, by informing and reminding the witness of the importance of providing truthful testimony and the possibility of sanctions if they do provide false testimony pursuant to Rule 66(3). Moreover, during the familiarisation process a witness is being told in a private setting of his/her duty to provide truthful testimony and possibility of sanctions. The Judges should therefore be mindful of the fact that this is an obligation pursuant to Rule 66(3). With regards to the interpretation of Article 69(2), the Judges have ruled that Article 69(2) establishes the principle of the primacy of oral evidence.269 They held in Kenyatta that the live testimony of witnesses, elicited through questioning by the parties, participants and the Chamber is likely to constitute the most significant body of evidence in the case.270 A preference for oral testimony is also manifested in Lubanga were it was held that depending on the 264  Stuart Beresford, “Child Witnesses and The International Criminal Justice System: Does the International Criminal Court Protect the Most Vulnerable?” (2005) Journal of Inter­ national Criminal Justice, 721, 738. 265  Rule 66(3). 266  Katanga Directions in accordance with rule 140 para. 49. 267  Ibid. para. 50. 268  Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06, 28 January 2009 pp. 1–6. 269  Kenyatta decision on witness preparation para. 35. 270  Ibid.

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circumstances, there can be material advantages in testimony being given in its entirety viva voce before the Court, particularly when evidence of significance is challenged or requires comprehensive investigation. The live questioning of a witness in open court on all aspects of his/her evidence can have a material impact on the Chamber’s overall assessment of the evidence, since oral testimony is, for obvious reasons, of a different nature to a written statement. Most importantly the evidence can be fully investigated and tested by questioning, and the Court is able to assess its accuracy, reliability and honesty, in part by observing the conduct and demeanour of the witness.271 Although the Rome Statute framework highlights the desirability of witnesses giving oral evidence indeed, the first sentence of Article 69(2) requires that “[t]he testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or the Rules of Procedure and Evidence”—the second and third sentence of Article 69(2) provide for a wide range of other evidential possibilities: “[t]he Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.” Notwithstanding the express reference to oral evidence from witnesses at trial, there is a clear recognition that a variety of other means of introducing evidence may be appropriate. Article 68, which is expressly referred to in the first sentence of Article 69(2) as providing instances when there may be a departure from the expectation of oral evidence, deals directly with the particular exigencies of trials before the ICC, and most particularly there is an express recognition of the potential vulnerability of victims and witnesses, along possibilities that exist to afford protection, subject always to the rights of the accused and the need for the trial to be fair and impartial.272 In Bemba it was ruled that the term “given in person” used by Article 69(2) does not imply that witness testimony shall necessarily, under any circumstances,

271   Lubanga decision on application of prior-recorded statements para. 21; see also Rule 140; Donald K. Piragoff, “Article 69, Evidence”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1301–1336 at 1312; Goran Sluiter, “The ICTR and the protection of witnesses,” (2005) Journal of International Criminal Justice 962, 964. 272  Prosecutor v. Lubanga, Decision on the admissibility of four documents, ICC-01/04-01/06, 13 June 2008 para. 22 (hereinafter referred to as Lubanga admissibility of four documents).

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be given by way of live testimony in court.273 Instead, the Statute and the Rules give the Court broad discretion, subject to the provisions of Rule 67, to permit evidence to be given viva voce by means of video or audio technology whenever necessary, provided that the Statute and the Rules are respected and such measures are not prejudicial to, or inconsistent with, the rights of the accused.274 For Simon Smet, Article 69(2) establishes an immediacy principle that testimony, shall be given in person, this seems to be affirmed in allowing for audio or video link the drafters were careful to stipulate that this is only acceptable insofar as such technology permits the witnesses to be examined by the prosecutor the defence and the chamber itself at the time that the witness so testifies.275 Both Articles 69(2) and 64(6)(b) gives the Court a legal authority for witnesses to assist it in providing for evidence they do not provide the Court with authority to compel witnesses to testify. The Court is thus left with other options in which it may collect its evidence through witness testimony. According to the Judges on occasion there will be little, if any advantage, to evidence being given in toto orally, for instance when there is likely to be limited challenge or where the testimony is not of central significance.276 Further, in Katanga, Judge Steiner pointed to the widespread use of documentary material at the Nuremberg and Tokyo trials and explained that although in the early days of the Ad hoc tribunals oral testimony was emphasised, ‘the more access the prosecution had to official documents of the entities involved or to audio or video evidence the lesser weight was placed on the evidence given by witnesses.277 Importantly, the right of the accused to a fair trial must not be undermined by decisions of admission of different kinds of testimony the Judges ensure that the accused’s rights are appropriately protected. For instance, if, Article 69 is relied on, any measures which the Chamber implements “shall not be prejudicial to or inconsistent with the rights of the accused”.278 In light of the above, the next parts examine the other methods pursuant to Article 69(2).

273  Bemba Video-link Authorisation para. 8. 274  Ibid. 275  Rule 67; Simon De Smet, ‘A structural analysis of the role of the Pre-Trial Chamber in the fact-finding process of the ICC’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 405–440 at 420. 276  Lubanga decision on application of prior-recorded statements para. 22. 277  Katanga Decision on Evidentiary Scope para. 76. 278  Lubanga decision on application for the admission of prior-recorded statements para. 23.

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5.4.2.2.1 Evidence via Electronic Means Article 69(2) provides for the Court to permit ‘the giving of viva voce (oral)’ testimony of a witness by means of video or audio technology. These measures should however not be prejudicial to or inconsistent with the rights of the accused. Jurisprudence holds that one of the relevant criteria to be considered in determining whether or not a witness should be allowed to give testimony by means of video technology is the witness’s personal circumstance.279 Personal circumstances have been interpreted as linked to the wellbeing of a witness; however the Chamber is not confined by the Statute in considering other types of personal circumstances, which might justify a witness testifying by means of audio or video technology.280 The probative value of a witness not physically present in the courtroom but only through the medium of video is sometimes a matter of delicate assessment.281 Rule 67(1) specifies that such testimony can only be authorised when it permits the witness to be examined by the Prosecutor, the defence or Judges. Rule 67(3) provides that the facilities chosen for such testimony must be ‘conducive to the giving of truthful open testimony, to the safety physical, psychological wellbeing, dignity and privacy of the witness.282 Testimony via video-link is an extension of the Court to the location of the witness whereby the accused is neither denied his/her right to cross-examination and does not lose materially from the physical absence of that witness. If application for video testimony is granted, as part of the familiarisation process the witness is to be given one or more “trial runs” at speaking over the video-link, by way of questions and answers, so that he/she can understand the need to speak clearly, slowly and to pause after each question before answering. It is important that he/she is comfortable with this method of giving evidence, if this procedure is used.283 Since the ICC cannot oblige witnesses to appear in person the alternative of video-link testimony seems to be of more importance to the Court than the ad hoc tribunals.284 Thus permits the Judges, to hear testimony, put questions 279  Bemba Video-link Authorisation para. 10. 280  Ibid. 281  Frank Terrier ‘The Procedure before the Trial Chamber’ in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) pp. 1277–1318 at 1306; Kevin R. Gray, ‘Evidence before the ICC’, in Dominic McGoldrick Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) pp. 287–313 at 311. 282  Lubanga Defence Video-link para. 17; See also OTP Regulation 61. 283  Ibid. para. 19. 284  Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia 2002) pp. 275–276; Kevin R. Gray, ‘Evidence before the ICC’ in

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to clarify evidence given during testimony, and observe the demeanour of the witness and for the defence/prosecution to cross-examine the witness. 5.4.2.2.2 Prior-Recorded Testimony Article 69(2) refers to recorded testimony confirming the possibility that a PreTrial Chamber may take evidence, which will be admissible at trial under certain circumstances. Previously recorded testimonies may be presented during trials when the conditions stipulated in Rule 68 are satisfied. That is, the PreTrial Chamber took measures under Article 56 or that if such measures were not taken, both the Prosecutor and defence must have had an earlier opportunity to examine the witness during the recording in case the witness is not present in Court or they must agree with the submission of the transcript of the witness statement if the latter is present in Court and also agrees. Both parties and the Judges are then able to examine the witness.285 Consequently, the right seems to be respected, as unchallenged evidence cannot be used against the accused.286 Kress argues that Rule 68(a) contains yet another ambiguous provision with potentially great importance for the way prosecution and defence will interact at the investigation stage.287 He argues further that another instrument with the potential of shifting the weight from the trial to the pre-trial stage is the unspecified possibility under the first and second sentence of Article 69(2) of introducing previously recorded testimony and written transcripts as evidence at trial. He suggests Rule 68(a) adds only the condition that the prosecutor and the defence must have had the opportunity to examine the witness during the recording. It is thus for the Judges to develop more specific criteria to give proper weight to the general principle, laid down in Article 69(2) that witnesses shall testify before the Court in person.288

Dominic McGoldrick Peter Rowe and Eric Donnelly (eds.) The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) pp. 287–313 at 310. 285  See also Rule 111; Alphonse Orie, “Accusatorial v. Inquisitorial Approach in International Criminal Proceedings prior to the Establishment of the ICC and in the Proceedings before the ICC”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) pp. 1439–1495; Donald K. Piragoff ‘Evidence’ in Otto Trifferer ed, Commentary on the Rome Statute of the Inter­ national Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1301–1336 at 1313–1314. 286  Sluiter I beg you, please come testify 2009 590, 590. 287  Claus Kress, ‘The procedural law of the International Criminal Court in outline: Anatomy of a unique Compromise’ (2003) Journal of International Criminal Justice 603, 611. 288  Ibid.

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The Judges have ruled that the exception of Rule 68(a) which allows for introduction of prior-recorded testimony under certain circumstances, evidence before the Pre-Trial Chamber cannot be introduced automatically into the trial process simply by virtue of having been included in the list of evidence admitted by the Pre-Trial Chamber, but instead it must be introduced if necessary de novo.289 In Lubanga, the Judges held that, Rule 68 is directed at the “testimony of a witness” in a broad sense, given that the various forms of testimony that are specifically included in the rule are audio or video records, transcripts or other documented evidence of “such” testimony (namely, the testimony of a witness). The Chamber highlighted, particularly, that the “other documented evidence” (of the testimony of the witness) is referred to separately, and in addition to, the audio or video records in the opening paragraph of Rule 68.290 Accordingly, Article 68(2) and Rule 68(b) create separate routes whereby priorrecorded testimony can replace in full or in part, live ­testimony.291 However, these provisions, although potentially overlapping, are clearly different in scope, since the focus of Article 68(2) is specifically directed at protecting victims and witnesses whilst Rule 68 is a general provision for the introduction of prior-recorded testimony, subject to specific safeguards.292 Previously recorded testimony is essential and applicable in situations where the witness is incapable of testifying at the time of trial or in the event of an unforeseen circumstance such as death of the witness.293 The focus should be on the word testimony, which is, a statement of a witness offered as evidence of the truth of that which is stated.294 Therefore, Article 69(2) and Rule 68 will not apply to other types of previously recorded evidence such as 289  Prosecutor v. Lubanga Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the Decisions on the Pre-Trial Chamber in trial proceedings and the manner in which evidence shall be submitted, ICC-01/04-01/06, 13 December 2007, para. 8 (hereinafter, Lubanga Decision on the status before the trial chamber of the evidence heard by the pre-trial chamber December 2007). 290  Lubanga decision on application of prior-recorded statements para. 18; For procedure to be followed according to Rule 68(b) for a party who wishes to introduce prior recorded testimony see Katanga, Directions in accordance with rule 140 paras. 92–94; Lubanga Decision on disclosure by the defence January 2010 para. 66. 291  Ibid. para. 20. 292  Ibid. 293  Donald K. Piragoff, ‘Article 69, Evidence’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1301–1336 at 1315. 294  Tapper C., Cross & Tapper on Evidence, (8th Ed, London: LexisNexis Butterworths 1995) p. 45.

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a mere recording of an event without any testimony of a witness. In addition, the purpose of this provision is not only to protect the interest of the accused, but may also act as a time saving device in cases where a witness’ evidence has been previously recorded, and he/she does not have to give the same evidence again.295 Lubanga Judges have noted the advantages of receiving testimony pursuant to Rule 68, ruling it avoids witnesses unnecessarily repeating their evidence once it has been recorded. Furthermore, there is a real potential for war crimes trials to last an excessive period of time and the court is entitled to bear this issue in mind when weighing the possibility of receiving non-oral evidence.296 5.4.2.2.3 Transcript/Written Statements Article 69(2) also contains a reference to introduction of documents or written transcripts. The parties to the proceedings may use a transcript of a witness who has testified before the Court or during a Pre-trial phase and is unable to come testify at the trial. This is an indication as to the admissibility of such materials and is an important exception to the approach taken by common law tribunals.297 However, De Smet observes that the article immediately waters down its strict application of immediacy by allowing the Court to accept transcripts.298 The Judges have been persuaded that the ambit of Rule 68 permits the introduction of written statements, in addition to video or audiotaped records or transcripts, of a witness’s testimony because these are all clear examples of the “documented evidence” of a witness’s testimony.299 Applying the straightforward language of Rule 68 in Lubanga, the Judges held that its correct interpretation is that the Chamber has the discretion to order that written statements (viz. “the transcript or other documented evidence of . . . the testimony”) are to replace “live” evidence if, but only if, one of the two following conditions are met: either that the defence and the prosecution have had the opportunity to question the witness if he/she is not present before the Court, or, for a witness before the Court, the witness who gives consent to the 295  See May & Wierda, ‘Trends in International Criminal Evidence: Nuremburg, Tokyo, The Hague, and Arusha’ (1999) Columbia Journal of Transnational Law 249. 296  Lubanga decision on application of prior-recorded statements para. 22. 297  Donald K. Pigaroff, ‘Artcile 69’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1301–1336 at 1317. 298  See Simon De Smet, ‘A Structural Analysis of the Role of the Pre-Trial Chamber in the factfinding process of the ICC’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pp. 420–422. 299  Lubanga, decision on application of prior-recorded statements para. 18.

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introduction of the evidence is available for examination by the prosecution and the defence.300 The Judges are of the view that fact-specific decisions will need to be taken in resolving applications under Rule 68(b).301 In Lubanga, although the defence did not participate in the process by which the written records were produced, under Rule 68(b), it was ruled the witnesses, will be present in Court for any examination by the defence and the Judges which is necessary.302 There was nothing to indicate that the background evidence they provided was materially in dispute; and their testimony was not central to the core issues in the case—instead it added relevant background detail or was supportive of other evidence.303 Again, the Judges reiterated that, there are likely to be some real “savings” in court time by introducing written statements in place of the initial examination of the witnesses by the prosecution. The proposal made by the prosecution to introduce prior-recorded statement was the most efficient means of receiving the evidence, without prejudicing the rights of the defence. In this regard, the Chamber indicated that the defence will not be permitted to address in their questions all the facts and events covered by the statements, regardless of their relevance to the trial questioning was to be focussed on the issues in the case and the Chamber will not permit topics to be addressed which are irrelevant.304 In Katanga the transcript of an interview with a deceased witness was admitted in evidence but only for the purposes of the confirmation hearing.305 The Judges held that competence to decide on the admissibility of the evidence given by a witness at trial lies with the Trial Chamber.306 A witness must give an informed consent to the prosecution’s use of his/her statement, interview notes and/or interview transcripts in the proceedings of a given case prior to their admission for the purpose of the confirmation hearing.307 In exceptional circumstances, the Judge considered that the proper remedy for the lack of consent of witness couldn’t be to rule that the transcripts of his interview are 300  Ibid. para. 19. 301  Ibid. para. 21. 302  Ibid. para. 24. 303  Ibid. 304  Ibid. 305  Katanga Admissibility of Transcripts of Deceased Witness p. 9. 306  Ibid. pp. 6–7. 307  Ibid. p. 7; the confirmation hearing is neither a “trial before the trial” nor a “mini-trial”; the main goal is to ensure “that no case goes to trial unless there is sufficient evidence to establish substantial grounds to believe that the person committed the crime with which he or she has been charged”. See p. 4.

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inadmissible for the purpose of the confirmation hearing because, due to his death, such consent was neither necessary in terms of protection nor possible.308 5.4.2.2.4 The Use of Witness Summaries at the Confirmation Hearing The use of summaries is permissible the Pre-Trial Chamber takes sufficient steps to ensure that summaries of evidence in the circumstances are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial. This is determined on a caseby-case basis, bearing in mind the character of the confirmation hearing.309 Article 61(5) expressly states that, for the purpose of the confirmation hearing, the Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at trial. According to this provision, although oral testimony is permissible as evidence at the confirmation hearing, it was affirmed in Katanga that the evidentiary debate at the confirmation hearing can be based on written, audio or video evidence; and that when the prosecution intends to rely on witnesses for the purpose of the confirmation hearing, it will normally do so through the use of their statements or the transcripts of their audio or video recorded interviews.310 In Lubanga, the Appeals Chamber found that the use of summaries by the Prosecutor at the confirmation hearing pursuant to Article 61(5), second sentence, is not subject to any explicit condition, neither the Statute nor the Rules foresee that such summaries must be approved by the Pre-Trial Chamber prior to their presentation at the confirmation hearing.311 Katanga Judges considered that the “information provided by witnesses should be necessary for confirming the charges because it is highly relevant and corroborates other material currently in the list of evidence”.312 The use of summaries that corroborates other evidence is not prejudicial to, or inconsistent with the rights of the suspects; the burden of providing the relevant incriminating information in the summaries as well as the obligation to provide all potentially exculpatory or exonerating information in such, summaries lies with the prosecution; and that, therefore, the Judge will not analyse the content of the summaries presented by the prosecution in its application for the use of summaries.313 The Lubanga Appeals Chamber was not persuaded 308  Ibid. p. 9. 309  Katanga Decision on the Use of Summaries of the Statements of Witnesses 267 and 243. 310  Ibid. 311  Lubanga Appeal Judgment para. 43. 312  Katanga Decision on the Use of Summaries of the Statements of Witnesses 267 and 243. 313  Ibid.

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by an argument that pursuant to Rule 81(5) the Prosecutor may only rely on the summaries at the confirmation hearing if the underlying statements and other documents have been disclosed to the defence prior to the confirmation hearing.314 Significantly, the prosecution should not be allowed to rely at the confirmation hearing on the evidence given by a witness (be it in a written format or through oral testimony), if the prosecution cannot subsequently rely on the evidence of the said witness for the purpose of the trial.315 The evidentiary debate at the confirmation hearing is limited; it imposes upon the prosecution the duty to limit the number of witnesses on whom it intends to rely at the confirmation hearing to the “core witnesses” of the case. It aims at facilitating the preparation for trial in the event that the charges are confirmed.316 5.4.3 Credibility/Admissibility and Relevance of Testimony As fact-finders the Judges have been given the authority to assess evidence freely and rule on its admissibility. This is an important issue as the Judges are entitled to discern the credibility of a witness story. Article 64(9)(a) provides that “The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to (a) Rule on the admissibility or relevance of evidence. [. . .].” Article 69(4) confers on the Chamber a broad power to make decisions as regards evidence. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of witness, in accordance with the RPE. Rule 63(2) provides that a Chamber shall have the authority, in accordance with the discretion described in Article 64(9) to assess freely all evidence. It follows that the Chamber has been given a wide discretion to rule on admissibility or relevance and to assess any evidence, subject to the specified issues of “fairness”.317 The right to lead evidence pertaining to the guilt or innocence of an accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties namely the Prosecutor and the defence.318 In Lubanga, the Judges ruled that the Chamber is authorised by Statute to request any evidence that is necessary to determine the truth, 314  Lubanga Appeal Judgement paras. 47 & 50. 315  Katanga Admissibility of Transcripts of deceased Witness p. 6. 316  Ibid. 317  Lubanga admissibility of four documents para. 23. 318  Prosecutor v. Lubanga, Judgment on the appeals of the prosecutor and the defence against trial chamber I’s decision on victims participation of 18 January 2008, ICC-01/04-

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subject always to such decisions on relevance and admissibility as are necessary, bearing in mind the dictates of fairness. In ruling on admissibility the Chamber will frequently need to weigh the competing prejudicial and probative potential of the evidence in question. It is of particular note that Rule 63(5) mandates the Chamber not to “apply national laws governing evidence”.319 For these reasons, the Chamber has concluded that it enjoys a significant degree of discretion in considering all types of evidence. This is particularly necessary given the nature of the cases that will come before the ICC. There will be infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during particularly egregious instances of armed conflict, when those involved will have been killed or wounded, and the survivors or those affected may be untraceable or unwilling—for credible reasons—to give evidence. If a challenge is made to the admissibility of evidence, it appears logical that the burden rests with the party seeking to introduce the evidence. This has been the practice of the ICTY and there seems no reason to disturb this self-evidently sensible requirement.320 When evaluating the oral testimony of a witness the Judges, consider the entirety of the witness’s account, the manner in which he/she gave evidence, the plausibility of the testimony and the extent to which it was consistent including as regards other evidence in the case. The Judges also assess whether the witness evidence conflicted with prior statements he/she made insofar as the relevant portion of the prior statement is in evidence. In each instance the Judges evaluated the extent and seriousness of the inconsistency and its impact on the overall reliability of the witness.321 In Lubanga the Judges made appropriate allowance for any instances of imprecision, implausibility or inconsistency, bearing in mind the overall context of the case and the circumstances of the individual witnesses.322 It was held that: “[. . .] the charges relate to events that occurred in 2002 and 2003. Memories fade, and witnesses who were children at the time of the events, or who suffered trauma, may have had particular difficulty in providing a coherent, complete and logical account. There are other potential reasons why a witness’s evidence may have been flawed and the Chamber, when assessing his/her testimony, has taken these c­ onsiderations 01/06OA9OA10, 11 July 2008 para. 93 (hereinafter, Lubanga Appeal decision on victims participation 11 July 2008). 319  Lubanga admissibility of four documents paras. 24–25. 320  Ibid.; Lubanga Judgment para. 107; Ngudjolo Judgment para. 54. 321  Lubanga Judgment para. 102; Ngudjolo Judgment para. 49. 322  Ibid. para. 103.

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into account and they are reflected in its overall assessment of the account in question.”323 In certain instances the Judges do not rely on part of a witness’s account whilst accepting other aspects of his/her evidence, thereby acknowledging that it is possible for a witness to be accurate on some issues and unreliable on others. Nonetheless, when the Chamber rejects part of a witness’s testimony, it invariably considered the impact of that decision as regards the reliability of the remainder of the individual’s evidence.324 The Judges considered the individual circumstances of each witness in Lubanga, including his/her relationship to the accused, age, vulnerability, any involvement in the events under consideration, the risk of self-incrimination, possible prejudice for or against the accused and motives for telling the truth or providing false testimony.325 The Judges took a great decision by guaranteeing the rights of the accused in disqualifying the testimony of some victim-witnesses and their participation as victims. The Judges held they couldn’t rely on their testimony for the purposes of determining the individual criminal responsibility of the accused beyond reasonable doubt.326 In Katanga the parties jointly requested the Chamber to ignore a certain witness P-159’s testimony at least for its incriminating content. While there was no formal agreement in this regard, it was clear that the parties were all of the view that P-159’s testimony is unsafe. The Judges held that although strictly speaking this situation does not fall under the terms of Rule 69 on agreements as to evidence, the Chamber could take note of the apparent consensus among the parties that P-159’s testimony lacks probative value. Such consensus cannot bind the Chamber in its assessment of the evidence in question and there are no automatic consequences attached to it.327 However, in the present circumstances, having regard to the fact that it is the party who called the witness who was renouncing the testimony and having considered the evidence given by the witness in light of the parties’ evidential arguments, especially the fact that no one contests the reliability of the contradicting statements of P-159’s father 323  Ibid.; Ngudjolo Judgment para. 49. 324  Ibid. para. 104. 325  Ibid. para. 106. 326  Lubanga Judgment para. 484; see also Ngudjolo Judgement paras. 281–283; Prosecutor v. Katanga et al., Order to the Prosecutor regarding the alleged false testimony of witness, P-159 ICC-01/04-01/07, 13 January 2012 para. 3. 327  Prosecutor v. Katanga et al., Decision on the Prosecution’s renunciation of the testimony of witness, P-159 ICC-01/04-01/07, 24 February 2011, para. 13 (hereinafter, Katanga’s prosecution renunciation of testimony).

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and sister, the Judges accepted the parties’ concurrent submissions that there are persuasive reasons to doubt whether P-159 has spoken the entire truth.328 The Judges held that under these conditions, and given the need to guarantee the fairness and expeditiousness of the proceedings, the Judges informed the parties that it would not give any evidentiary weight to P-159’s testimony in its deliberations on the question of guilt of the accused.329 The Chamber considered that this decision is sufficient to protect the interests of the accused rights to a fair trial.330 5.4.3.1 Admissibility of Evidence other than Direct Oral Testimony With evidence other than direct oral testimony, the approach followed by the ICC is as follows: the Chamber must ensure that the evidence is prima facie relevant to the trial, in that it relates to the matters that are properly to be considered by the Chamber in its investigation of the charges against the accused and its consideration of the views and concerns of participating victims.331 The Judges must assess whether the evidence has, on a prima facie basis, probative value. The indicia of reliability include whether the evidence is voluntary, truthful and trustworthy as appropriate.332 Finally, the Judges must weigh the probative value of the evidence against its prejudicial effect.333 In Ngudjolo, the Judges made allowance for the difficulties encountered where it proves impossible to examine the individual who originally supplied the information. The degree of relevance and potential prejudice would then depend on the nature and circumstances of the particular piece of evidence. The Chamber has approached this issue on a case-by-case basis.334 The Judges have also taken a cautious approach in assessing evidence originating from anonymous hearsay. It does not rule out such evidence ab initio, instead assessing its probative value on the basis of the context and conditions in which such evidence was obtained, and with due consideration of the impossibility of crossexamining the information source.335

328  Ibid. para. 14. 329  Ibid. para. 15. 330  Ibid. para. 16. 331  Lubanga admissibility of four documents para. 26. 332  Ibid. paras. 27–28; see also 29–30. 333  Ibid. paras. 31–32. 334  Ngudjolo Judgment para. 55; see also Lubanga Judgment para. 108. 335  Ibid. para. 56; for more on this see Lubanga admissibility of four documents paras. 27–32.

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5.4.3.2 Corroboration Rule 63(3) prohibits the Chamber from “imposing a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court”. The extent to which a piece of evidence, standing alone, is sufficient to prove a fact at issue is entirely dependent on the issue in question and the strength of the evidence. The Judges have adopted a case-by-case approach.336 5.4.3.3 Questioning and Cross-Examination The use of the adversarial model by the Court requires that all evidence be scrutinized orally through examination and cross-examination, which is necessary for the determination of truth. Questioning and cross-examination is central to the ICC as it is one significant way of evaluating whether or not a witness is telling the truth or not. Article 54(3)(b), during the investigative and prosecution stage, the Court through its various organs may request the presence of and question persons being witnesses. Accordingly, Rule 140(2)(a) provides that the party submitting evidence by way of a witness has the right to question that witness. The prosecution/defence have the right to question a witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters pursuant to Rule 140(2)(b). In Lubanga it was held that the purpose of the “examinationin-chief” is “to adduce by the putting of proper questions . . . relevant and admissible evidence which supports the contentions of the party who calls the witness”.337 Subject to the authority of the Chamber to determine the mode and order of questioning of witnesses and presenting evidence, each party presenting evidence shall inform the Chamber, the other parties and the participants of the exact order of witnesses due to testify and the scheduled date of their appearance at trial.338 As a general instruction to all the parties appearing before it, the Chamber highlighted in Katanga the importance of asking succinct and precise questions, which are easily understandable by the person being questioned. Long and compounded questions are to be avoided.339 As a matter of principle, the Chamber will only allow questions that are clearly and directly 336  Lubanga Judgment para. 110. 337  Prosecutor v. Lubanga Decision on the Manner of Questioning Witnesses by the Legal Representafives of Victims, ICC-01/04-01/06-2127, 16 September 2009, para. 23 (hereinafter Lubanga Decision on the Manner of Questioning Witnesses); Lubanga decision on judicial questioning para. 44. 338  Katanga directions in accordance with rule 140 para. 8–9. 339  Ibid. paras. 59–60.

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relevant to contested issues. To the extent that a party has provided an indication of the themes it proposes to raise with a certain witness, and subject to any instructions by the Chamber regarding this matter, that party will be expected to confine its examination-in-chief to those themes.340 Therefore, in principle, questioning of a witness should be conducted in a neutral fashion. As a general rule, during examination-in-chief only neutral questions are allowed. The party calling the witness is therefore not allowed to ask leading or closed questions,341 unless they pertain to an issue that is not in controversy. However, if a party declares that the witness it has called has become adverse and the Chamber allows that party to continue questioning the witness, it may be appropriate for that party to cross-examine the witness. In such a case, cross-examination must be limited to issues raised during the initial part of the interrogation or contained in the witness’ previous statements.342 However, it needs to be stressed that there are undoubted exceptions to this approach, for instance when leading questions are not opposed.343 Again, in principle, a witness shall testify to what he/she remembers having observed. Witnesses are not allowed to simply read from earlier statements or other documents. However, given the length of time that has passed between the facts relevant to a case and the often traumatic nature of the facts to which the witnesses have to testify, the Chamber may allow witnesses to refer to documents in order to refresh their memory, but only insofar as: the documents in question contain the personal recollections of the witness, and copies of the document have been made available to the opposing party, who may rely on the parts referred to by the witness during cross-examination.344 It is immaterial whether the documents in question are admissible as evidence or not.345 If the witness has difficulty with the consultation of the documents in order to refresh his/her memory, the party calling the witness may ask authorisation from the Chamber to assist the witness. In such a case, the party shall avoid suggesting the answer to the witness on the basis of the documents. The party shall furthermore refrain from interpreting or paraphrasing what is contained in the documents.346 According to Rule 140(2)(d), the defence has the 340  Ibid. paras. 61–62. 341  Questions framed in a manner suggestive of the answers required are not appropriate. 342  Ibid. paras. 66–67. 343  Lubanga Decision on the Manner of Questioning Witnesses, para. 23; Lubanga Decision on judicial questioning, para. 44. 344  Ibid. para. 109. 345  Ibid. para. 110. 346  Ibid. para. 111: see also for the use of documents for examining a witness paras. 103–106.

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right to be the last to examine a witness. This means that if a witness was not called by an accused, the latter shall have the right to ask additional questions of the witness after he/she was re-examined by the party calling him/her.347 Furthermore once a party has called a witness he/she cannot be withdrawn before their testimony is complete without leave of the court. Any other result would create a situation in which the other party the participants or the Court, the latter under Article 69(3) may be compelled to recall the witness. This in turn could have unfair or undesirable ramifications as regards the manner of the continued questioning of the witness.348 5.4.3.3.1 Cross-Examination The Chamber may determine on a case-by-case basis that cross-examination, by the prosecution or defence is allowed.349 In Lubanga it was held that the purpose of “cross-examination” is to raise relevant or pertinent questions on the matter at issue or to attack the credibility of the witness. In this context, it is legitimate that the manner of questioning differs, and that counsel, are permitted to ask closed, leading or challenging questions, where appropriate.350 Parties have an obligation to put all questions relevant to the case of the crossexamining parties. The Judges have ascertained in Katanga that, it is a general rule and principle of fairness that the party opposing the party calling a witness has the right to question that witness by way of cross-examination, in accordance with Rule 140(2)(b).351 Cross-examination shall be limited to matters raised during examination-in-chief and matters affecting the credibility of the witness. However, where the witness is able to give evidence relevant to the case for the cross-examining party, it may ask questions about such matters, even if they were not raised during examination-in-chief. To the extent that the case of the cross-examining party is in contradiction with the evidence given by the witness during examination in-chief, that party shall state this clearly to the witness before putting questions on that topic.352 347  Ibid. paras. 79–81. 348  Prosecutor v. Lubanga Decision on the Prosecution’s ‘Request on the manner of Questioning of witness DRC-OTP-WWWW-0015’ and Contact by the Prosecution with Court witnesses, ICC-01/04-01/06, 1 February 2010, para. 18 (hereinafter, Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015’). 349  Katanga directions in accordance with rule 140, para. 44. 350  Lubanga Decision on the Manner of Questioning Witnesses DRC-OTP-WWWW-0015’ para. 23; Lubanga Decision on judicial questioning para. 44. 351  Katanga directions in accordance with rule 140 para. 68. 352  Ibid. paras. 69–70.

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Cross-examination allows the party not calling the witness to elicit all further relevant evidence as may be useful for the case of that party or necessary for the determination of the truth. It is therefore incumbent upon the cross-examining party to put all questions it may have for the witness during this occasion. In principle, the Chamber will not allow a party to re-call a witness if it already had the opportunity to cross-examine him/her. The Judges insists that cross-examination should be conducted in a focused and professional manner. It does not allow unwarranted insinuations or questions that are concealed speeches. It is permissible to challenge the credibility of a witness by way of challenging questions, but cross-examination must at all times remain civil and respectful to the witness. The Judges will not allow parties to assault the dignity or exploit the vulnerability of witnesses during cross-examination.353 The Judges have rightfully balanced the rights of all. While asserting their authority and enforcing the duty to determine the truth, by assessing the testimony of the witness through examination and cross-examination, they do not only ensure that the Court’s evidence is protected, or the accused rights to a fair trial but also ensure that the rights of the witness is protected from the risk of undue distress, or re-traumatisation during the cross-examination process. In so doing, the Judges uphold their obligation to ensure the equal moral worth of all ensuring that everyone partaking in the proceedings is an ultimate unit of concern for everyone. In Lubanga the Judges ruled that the defence has an undoubted and valid interest in exploring the discrepancy between a certain witness 15’s original statement and his present account, along with the suggested role of an intermediary. The extent of his rejection of his earlier evidence and the circumstances of the change may prove to be important to the defence case. In those circumstances, it would be unfair on the accused to refuse to permit the witness to continue his evidence or to force the defence to make him one of the accused’s witnesses since the latter requirement may well unreasonably restrict the kind of questions that counsel for the defence could ask. Additionally, given the wholesale change of account, it would be unfair to the prosecution, and it would potentially impede the Chamber in its pursuit of the truth, if the Prosecutor is at this stage restricted by the limits that are traditionally imposed on “examination-in-chief ”. . . In these particular circumstances, it is undoubtedly appropriate for the prosecution to ask, “closed, leading or challenging questions”, as necessary. If the Prosecutor is restricted to neutral questions, he would be unable to explore adequately the circumstances of 353  Ibid. paras. 73–75.

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the change of account and the reasons for it.354 The Judges further ruled that whilst it is instructive to review the approach taken by other courts and tribunals to the problem presented by witnesses who substantially alter their testimony or who seek to change their written testimony, it is important that the Judges do not create unnecessary “rules of evidence” which may prove in the long term to be unhelpfully inflexible, or artificial. Nonetheless, under the rule applied in other jurisdictions that a witness must have demonstrated hostility to the party calling him/her before that party can impeach the witness’s credit or contradict him/her by other evidence, there can be no doubt that Witness 15 has shown “hostility” towards, or is adverse to, the prosecution. The change in his account is fundamental, since he has seemingly resiled from some of the central elements of his first witness statement.355 Cross-examination must contribute to the ascertainment of the truth and is not to be used to obfuscate or delay the fact-finding process. As a general measure of good practice and subject to further specific instructions by the Judges, parties are encouraged to adhere to the following guidelines when cross-examining: a) Questions must pertain to matters of fact that could reasonably be expected to be known to the witness. Unless the witness is called as an expert, parties may not ask witnesses to speculate or explain their opinion about facts not known to them. b) Before putting questions about contextual elements and/or the historical context of the case, counsel must state the purpose behind the question and explain how the evidence sought is relevant to the confirmed charges. c) Questions probing the credibility of the witness and the accuracy of his/her testimony are allowed, but must be limited to factors that could objectively influence reliability. When the witness has fully answered the question, the party cross-examining the witness will not be allowed to put further questions aimed at impeaching that answer without permission of the Chamber. d) If a witness did not provide all his/ her testimony orally during examination-in-chief because the testimony was introduced by way of prior-recorded testimony under Rule 68(b), the crossexamining party must limit questioning to: i. issues contained in the passages of the prior-recorded testimony that were relied upon by the party calling the witness, or ii., matters relevant to its own case. The Chamber will not allow cross-examination on matters raised in the previously recorded testimony that have not been tendered into evidence by the party calling the witness.356

354  Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015’ para. 19. 355  Ibid. paras. 20–21. 356  Katanga directions in accordance with rule 140 para. 71.

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During cross-examination, use may be made of any document that is already in evidence. This includes the transcripts of witnesses who have already testified before the Court, subject to applicable protective measures.357 If a crossexamining party knows in advance that it will make reference to a document that is not already in evidence during cross-examination of a particular witness, it must inform the Chamber and the Court Officer at least three full working days before the scheduled hearing and provide it in electronic form, in accordance with Registry Regulation 52(2).358 Finally, the prosecution can seek leave to contact witnesses from the list of potential Court witnesses in furtherance of its preparation for cross-examination and to meet the defence case generally.359 A party or a participant wishing to interview a witness, whom the other party or a participant intends to call, shall first inform the party or the participant of the proposal, setting out the suggested time and location of the interview. If the witness consents, the party or participant shall make such contact through the VWU, which shall make the necessary arrangements for the interview. A representative of the VWU shall be present during the interview and the party or participant intending to call the witness may also attend the interview, unless the Chamber has, on an application, ruled otherwise.360 Although there may be important practical differences that the Chamber must take into account between the positions of the prosecution and the defence in the implementation of this Rule there are no sustainable reasons in principle for distinguishing between prosecution and defence witnesses for these purposes. Neither party ‘owns’ the witnesses it intends to call, there are many reasons why a discussion with some individuals in advance of their testimony may assist in the efficient management of the proceedings, and assist the Chamber in its determination of the truth.361 Importantly guidelines have been adopted to ensure that the cross-examination contributes to the ascertainment of the truth.362 5.4.3.3.2 Questioning by Legal Representatives on Behalf of Victims As a matter of general principle, questioning by the Legal Representatives on behalf of victims who participate in proceedings must have as its main aim

357  Ibid. para. 107. 358  Ibid. para. 108. 359  Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015’ paras. 12 & 23–24. 360  Lubanga Decision on disclosure by the defence January 2010 para. 48. 361  Ibid. paras. 49–51. 362  Katanga directions in accordance with rule 140 para. 71.

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the ascertainment of the truth.363 If, after examination-in-chief by the party calling the witness, the Chamber is of the view that the matters raised in the proposed questions of the victims have not been sufficiently addressed by the witness, it may authorise the Legal Representative to put the questions before cross-examination commences. In deciding whether it is appropriate to grant such authorisation, the Chamber will take into consideration the rights of the accused, the interests of the witness, the need for a fair, impartial and expeditious trial and the need to give effect to Article 68(3), in accordance with Rule 91(3)(b). This provision also authorises it to put the question to the witness, expert or accused on behalf of the Victims’ Legal Representative.364 When the Victims’ Legal Representatives does not anticipate putting questions to a particular witness, but during examination-in-chief by them party calling the witness, an unforeseen issue arises that directly pertains to the interests of the victims, the Victims’ Legal Representatives may submit a question to the Chamber, which may decide to put it to the witness, if it considers this necessary for the ascertainment of the truth or to clarify the testimony of the witness.365 In principle, questioning by Victims’ Legal Representatives should be limited to questions that have as their purpose to clarify or complement previous evidence given by the witness. They may be allowed to ask questions of fact that go beyond matters raised during examination-in-chief, subject to the following conditions: a) Questions may not be duplicative or repetitive to what was already asked by the parties. b) Questions must be limited to matters that are in controversy between the parties, unless the Victims’ Legal Representative can demonstrate that they are directly relevant to the interests of the victims represented. c) In principle. Victims’ Legal Representatives will not be allowed to ask questions pertaining to the credibility and/or accuracy of the witness’s testimony, unless the Victims’ Legal Representative can demonstrate that the witness gave evidence that goes directly against the interests of the victims represented. d) Unless the Chamber specifically gave authorisation under Regulation 56, Victims’ Legal Representatives are not allowed to put questions pertaining to possible reparations for specific individuals or groups of ­individuals.366 They shall conduct their questioning specifically authorised by the Chamber to deviate from this Rule. If the Victims’ Legal Representative is authorised to challenge the credibility/accuracy of a witness’s testimony, leading, 363  Ibid. para. 82. 364  Ibid. paras. 87–88. 365  Ibid. para. 89. 366  Ibid. para. 90.

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closed as well as questions challenging the witness’s reliability are allowed, subject to the same limitations as outlined in relation to cross-examination.367 5.4.3.3.3 Questioning by Judges Rule 140(2)(c) provides, the Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b). In all the circumstances, the Judges question witnesses in the manner it determines appropriate.368 Questions by Judges are framed in an open manner, leaving it to the witness to supply his/her response.369 According to Articles 64(2) and 64(3)(a), the Chamber determines the applicable principles as regards questioning by the judges and clarifies the rights of the defence in relation to those questions. They may ask questions about facts and issues that have been ignored, or inadequately dealt with, by counsel necessary for the determination of the truth.370 It is for the Judges to decide on whether, when they intervene, it is appropriate to use leading questions, depending on all the circumstances. For instance, they may conclude that earlier answers given by the person testifying, or other witnesses, justify a Judge dealing with an issue by way of leading rather than neutral questioning. The Judges have held that, generally, the Romano Germanic and the Common Law systems of law do not identify by way of a list, or a catalogue, the nature or the form of the questions that Judges are entitled to ask, and such a limitation would involve a serious interference with the independence of the judiciary.371 If the Chamber decides to hear a witness not called by any party, on the basis of its powers under Articles 64(6)(d) and 69(3), it will start examining the witness.372 Or when the Chamber has called a witness on the suggestion of one of a Legal Representative, it may allow that Representative to question the witness, either before or after the Chamber examines him/her. The remainder of the examination will follow the same order as for witnesses called by the Chamber proprio motu.373 It would seem that a mixed method (­adversarial-inquisitorial) is therefore suggested but it is ultimately left to the Judges to decide whether to place greater emphasis on the adversarial approach by asking the prosecution and defence to examine and cross-examine the 367  368  369  370  371  372  373 

Ibid. para. 91. Lubanga Decision on judicial questioning, paras. 42 & 49. Ibid. para. 47. Ibid. para. 41. Ibid. para. 46. Katanga Directions in accordance with rule 140 para. 43. Ibid. para. 48.

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witnesses first followed by the Court or for the inquisitorial approach in which case the witness is first questioned by the Judges and then by the parties who may also cross-examine him. On point it is however set out clearly and may not be departed from by the Court, the defence shall always have the opportunity to speak last.374 All in all, the search for the truth provides the basis for questioning by the Judges and examination and cross-examination of the witness. 5.4.3.4 Other Considerations (Prior Statements, Translation and Culture) In certain instances, the Judges consider whether there are indicia suggesting that witnesses may have been pressurised or influenced, or whether there was a risk that they were colluding with other witnesses.375 In Ngudjolo the Chamber took into account, the consistency and precision of the accounts; whether the information provided was plausible; whether the evidence conflicted with prior statements, insofar as the relevant portion of the prior statement is in evidence; any possible contradictions with the evidence of other witnesses; and, finally, the witnesses’ conduct during their testimony, including their readiness, willingness and manner of responding to the questions put to them by the parties, participants and the Chamber itself.376 Similarly in Mbarushimana, the Pre-Trial Chamber raised concern at the technique followed in several instances by some prosecution investigators, which seems utterly inappropriate when viewed in light of the objective, set out in Article 54(l) (a) to establish the truth by “investigating incriminating and exonerating circumstances equally”.377 They held that the reader of the transcripts of interviews is repeatedly left with the impression that the investigator is so attached to his/her theory or assumption that he/she does not refrain from putting questions in leading terms and from showing resentment, impatience or disappointment whenever the witness replies in terms which are not entirely in line with his/her expectations. The Chamber held it cannot, refrain from deprecating such techniques and from highlighting that as a consequence, the probative value of evidence obtained by these means may be significantly weakened.378 Furthermore, interpretation and translation is a major challenge at the ICC as it deals with a large number of witnesses from different African countries 374  Antonio Cassese, International Criminal Law (Oxford University Press 2008) p. 413. 375  Ngudjolo Judgment para. 53. 376  Ibid. 377  Prosecutor v. Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10, 16 December 2011, para. 51 (hereinafter, Mbarushimana confirmation decision). 378  Ibid.

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who speak various local or tribal-languages. These languages are later translated into English or French. In Ngudjolo it was held that simultaneous interpretation was used throughout the trial because the evidence in this case was given in a number of different languages. Whilst this was generally of good quality, on several occasions concerns were expressed as to the accuracy of certain interpretations.379 The Judges have been mindful that difficulties sometimes arise in regard to the interpretation or understanding of certain words, such as the names of people and places. It is also mindful that simultaneous interpretation cannot always reflect what was said absolutely perfectly and precisely.380 The Judges have also noted on various occasions difficulties in the transcription of statements made in court. Accordingly, it treated with circumspection those passages in the transcripts where witnesses stated that they reported “word for word” what was said by a third party. Nevertheless, in the absence of any challenges to the accuracy of the interpretation and transcription in the closing submissions, the Chamber decided to rely on those transcripts, in their corrected form as appropriate.381 As was evidenced at the ICTR and SCSL translation could be a major challenge for the duty of the Judges as fact-finders as translation errors may lead to serious misinterpretations of what the witness has said. It is of great significance; ICC Judges have recognized the potential impact of translation errors on the outcome of trials and ordered a full review of the English and French translations of testimonies.382 The reliability of the transcripts represent an essential condition of a fair trial and numerous inconsistencies between the French and English versions could lead to difficulties on the part of the Judges, which would then not be able to decide without delay on key facts.383 Finally, although the ICC deals with situations from one continent i.e. Africa each country has its own unique cultural framework. Fortunately, unlike the ICTR and SCSL this is something the ICC Judges quickly sported and recognised. Again in Ngudjolo the Judges ruled that the in-court testimonies enabled them to appreciate the special significance of the local customs and the function of family relationships in Ituri. It also observed that the notions of hierarchy and obedience were likely to be interpreted very differently, and that in this regard, the position of fetish-priests and their roles in these local 379  Ngudjolo Judgment para. 61. 380  Ibid. para. 62. 381  Ibid. 382  See Prosecutor v. Katanga et al.; Transcript, ICC- 01/04-01/07-T-325, 19 October 2011, p. 80 paras. 10–25 (hereinafter, Katanga Transcript 19 October 2011). 383  Ibid. p. 81 paras. 1–4; see also paras. 5–16.

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societies warranted special attention.384 The Judges recognized the flaws in the prosecution’s investigations by ruling that in all probability, the prosecution’s would have benefitted from a more thorough investigations of these issues, which would have resulted in a more nuanced interpretation of certain facts, a more accurate interpretation of some of the testimonies taken and, again, an amelioration of the criteria used by the Chamber to assess the credibility of various witnesses. In fact, much of the socio-cultural framework was discussed in response to the Chamber’s questions. In the Chamber’s view, this material should have been discussed at the beginning of the prosecution’s presentation of its evidence so as to prompt a more informed debate from the outset.385 In a nutshell the Judges have not only recognized the impact of cultural and linguistic differences on testimony but also identify that the problem arises from inside the ICC itself. They do acknowledge that this problem stems from the prosecution’s investigations, some of its investigators and translators. The ICC is at its early stages, on a positive side in quickly identifying these issues there is room for improvement on the part of ICC personnel’s. 5.5 Sanctions This section discusses the possibility of sanctioning witnesses for crimes committed before the ICC and the Court’s duty to enforce sanctions for false testimony and other forms of contempt. Article 70(1) provides: The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth . . . While Article 71(1) provides: The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. 5.5.1 Legislative History The ILC Draft had originally addressed the issue of safeguarding the integrity of the Court’s proceedings in Article 48(2) which obligated States Parties to extend their laws on perjury to cover evidence given under the Statute by their nationals and to cooperate with the Court in investigating and prosecuting any 384  Ngudjolo Judgment para. 122. 385  Ibid. para. 123.

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case of suspected perjury.386 It was observed that the Statute did not include a provision making it a crime to give false testimony before the Court.387 There were some doubts as to whether it would be appropriate to address this matter in the Statute rather than requesting States parties and other States which accepted the Court’s jurisdiction to address this matter by extending their national criminal laws concerning perjury to cover violations of the relevant national oath or declaration by their nationals before the Court. The Working Group decided to return to this question.388 The US delegation expressed the view that given the significance of conferring on the court the power to punish contempt, perjury and witness intimidation, it may be appropriate that such a provision be included in the Statute itself, rather than in the Rules. However, they noted, even if such provisions are included in the Statute; it may be useful for the Rules to elaborate the procedures to be applied in such cases.389 The UK delegation emphasised that it would be more appropriate for the ICC to have jurisdiction to deal itself with instances of perjury.390 One of the issues addressed was the manner in which prosecution by the Court of Article 70 offenses would take place. Many delegations were concerned that various principles and procedures in the Statute were not appropriate for non-core crimes. A number of delegates were of the view that the admissibility process under Articles 17 through 19 was not appropriate for Article 70 offenses. Some delegations thought the process of charging Article 70 offenses should be more simplified than Article 58 through 61’s procedure for charging violations of core crimes.391 The discussions of the Zutphen 386  See Article 48 ILC 1993 Draft; Prepcom Report Vol. II p. 102. 387  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 854. 388  ILC 1993 Draft, Article 48; ILC 1994 Final Report Article 44(2), pp. 120–121. 389   U SA Non-Paper on Rules of Investigation, Procedure and Evidence for the International Criminal Court footnote 77. 390  Ad Hoc Committee on the Establishment of an International Criminal Court, Summary of observations made by the Representative of the United Kingdom of Great Britain and Northern Ireland, Press Release No. 32/95, 7 April 1995 p. 9. 391  Kenneth Harris, ‘Offences against the administration of justice,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 917–923 at 921; Otto Trifferer, ‘Sanctions for misconduct before the Court,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 925–935; Donald K. Piragoff ‘Article 70 Offences against the administration of justice’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1344.

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draft during the last session of the prepcom produced a more extensive version in a corresponding Article 70 headed ‘offences or acts against the integrity of the Court’ and containing more precise definitions of individual offences or acts of misconduct.392 In a note it was expressly stated ‘It is not contemplated that all the provisions of the Statute and Rules whether substantive or procedural regarding the Court’s exercise of jurisdiction over Article 5 crimes would apply equally to these offences. Further work to clarify this issue will be essential. Moreover similar thought must be given to States parties’ obligation to surrender persons charged with these offences especially when the State Party is pursuing prosecution itself.393 Given the complexity of devising an appropriate procedure for prosecuting these offences and the little time, which was available to resolve the issues, the conference decided as a general matter to leave elaboration of more detailed standards to the RPE.394 With regards to applicable law, the French delegation suggested that general principles of criminal law should be applicable to these offences. It proposed that all of part 3 except Article 29 regarding nonapplicability of the statute of limitation should apply.395 During the debate it was pointed out that Article 26 would preclude jurisdiction over offenders under the age of 18. It was recalled that Article 26 was the result of very complicated negotiations where consensus on an age of criminal liability could not be reached and that young offenders would require a number of special measures. It was hence advised that the limitation of the ICC’s jurisdiction 392  Prepcom Report Vol. II, p. 111. 393  See, Otto Trifferer, ‘Sanctions for misconduct before the Court,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) p. 927. 394  Kenneth Harris, ‘Offences against the administration of justice,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 919 & 921–922; Donald K. Piragoff ‘Article 70 Offences against the administration of justice’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1338; Report of the working group on procedural matters UN Doc.A/CONF.183/C.1/WGPM/L.2/Add.7; Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, A/AC.249/1998/L.13, Article 63, p. 119; Otto Trifferer, ‘Sanctions for misconduct before the Court,’ in Otto Trifferer (eds.) pp. 925–935; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 859. 395  Hakan Friman ‘Offences and Misconduct against the Court’ in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) pp. 605–636 at 619.

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over young offenders should apply here too; juvenile offenders should rather be dealt with by the national systems. According to Hakan Friman the issue of applying all provisions of part 3 to the offences under Article 70 did not receive much attention. He presumes that a reason for this was that it was overtaken by the debate on whether further definitions of the offences should be elaborated.396 The most difficult issue raised in the drafting of Article 70 was the question of which court should exercise jurisdiction over these offences, the ICC or national court of a state party. In August 1996 the Working group on Procedural Matters made proposals to provide the Court itself rather than States Parties with the power to punish such offenses.397 The Australian delegation for instance, proposed that as in the case with national courts the Court must have the power to deal with contempt and perjury. They emphasised that the statute should address the point with necessary elaboration to be undertaken in the Rules.398 It was finally decided that the Court must be able to deal with perjury. There was some criticism to the fact that the ILC draft Statute provided for the State parties to extend their laws, one of the shortcomings of the provision was that it would not cover the situation where the national of a non-State party was giving evidence. ICTY Rule 91 was referred to and it was noted that following the rule, an alternative view on dealing with contempt and perjury is that States should punish their nationals for committing these crimes when appearing as witnesses before the Court.399 It was only after the Siracusa meeting that a clear understanding began to emerge that the principle of complementarity as set forth in the statute would not apply.400 At the Rome conference, again States expressed concern about the ICC itself having jurisdiction over these crimes. It was noted that the ICC should refer this cases to the State concerned and such a State should take action, treating the cases with all diligence. Delegates recognised that it will be impracticable to leave prosecution of these offences exclusively to the jurisdiction of States Parties, they were also mindful of the fact that the Court might have insufficient time 396  Ibid. 397  Prepcom Report Vol. II pp. 210–213; see also Donald K. Piragoff, ‘Article 70 Offences against the administration of justice’, in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1344–1345. 398  Ibid. pp. 102–103, 399  Ibid. Rule 77 Contempt of the Tribunal p. 102. 400  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) pp. 605–636 at 610.

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and resources to pursue all such offences or might have difficulty exercising jurisdiction or that it might otherwise be more appropriate in a particular case for prosecution to be carried out by the State.401 Furthermore, with regards to the rules the text of Article 70(4)(b) regarding the Court’s request to a State party to deal with the matter gave rise to different interpretations. The Netherlands submitted a proposal seeking to clarify the courts primary right to exercise jurisdiction but providing at the same time a waiver of this right upon a request of territorial or custodial state.402 The proposal gained support but also criticism, Poland raised concerns regarding the unqualified primacy of the court as provided in the proposal. Instead Poland proposed a set of criteria for the court to consider when deciding whether to exercise jurisdiction.403 After a long debate, a number of delegations concluded that the host state might need to be treated differently since the offences under Article 70 were more likely to occur in that state other than in other states. It was also pointed out that more than one state might have jurisdiction over a particular offence and thus that complex cases of concurrent jurisdiction could occur.404 The conclusion was that both proposals had gained strong support and that efforts should be made to merge them. It was however recognised that to establish a clear cut rule of general application regarding the relationship between the Courts jurisdiction and national jurisdiction would be difficult in light of the different interpretations given to Article 70.405 It was suggested that a special rule be created in relation to the host state as well as a general rule along the lines proposed by Poland the general rule would provide some parameters to guide the court’s decision and hence predictability as the court’s exercise of its jurisdiction. This was used as the objective for merging the two proposals.406 In line with a Japanese proposal made during the debate the text would provide that if the court decided not to exercise its jurisdiction it may request a state party to exercise jurisdiction. The merged proposal was incorporated an additional provision giving the court the option of consulting with State parties that might have jurisdiction 401  Prepcom Report Vol. II, pp. 210–213. 402  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee(eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) pp. 605–636 at 610; PCNICC/1999/WGRPE/DP.27 (30 July 1999). 403  Ibid.; PCNICC/1999/WGRPE/DP.29 (2 August 1999). 404  Ibid. p. 611. 405  Ibid. 406  Ibid.; Proposal submitted by the Netherlands and Poland, PCNICC/1999/WGRPE/DP.31 (3 August 1999) Rule 6.34.

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before deciding whether to exercise jurisdiction.407 In the 5th session of the preparatory commission, Rule 162 was redrafted the major amendment was the deletion of references to the court’s primary power to exercise jurisdiction in relation to the host state. The intention was not to change the substance of the provision but to avoid misinterpretations regarding the Court’s powers that might be the result if the reference to primary power was only made in relation to the host state.408 Friman observes that from the outcome of negotiations, the uncertainty stemming from the conflicting interpretations of the different language versions of the Statute has not been clearly removed. However Rule 162 provides for some predictability and in addition one may argue that it does support the interpretation that the Court has primary power to exercise jurisdiction over the offences in Article 70.409 The French draft proposal contained a number of detailed provisions on international cooperation and judicial assistance in respect of Article 70. There was a consensus that not all of part 9 should be excluded from being applicable.410 It was specified that the conditions for providing international cooperation and judicial assistance were those set forth in the article itself and that the Court might request any form of cooperation or assistance corresponding to those forms set forth in part 9 thereby avoiding any problem with the distinction between surrender and extradition. For the benefit of the requested State the ICC should always indicate in its request for cooperation if the request relates to Article 70 offence. This was how Rule 167 appeared in the discussion paper to the Preparatory Commission.411 After some initial doubts were expressed the Rule stood the test of time and was later included in the final report of the working group and adopted by the Commission.412 With regards to the question of enforcement of sanctions imposed under Article 70, the general conclusion was that part 10 should apply; this corresponded with a French proposal. Thereafter, the Netherlands had considered this issue further and concluded that only the provisions of Articles 103 (sentences) and 109(1), dealing with fines and forfeiture should apply. A proposal was then submitted at the second session of the Preparatory Commission the argument for excluding the other provisions of part 10 was that they were drafted for the core crimes. It was finally agreed that part 10 should be excluded with the exception 407  Ibid.; PCNICC/1999/WGRPE/RT.5 /Rev.1 (11 August 1999) Rule 6.32. 408  Ibid.; PCNICC/2000/WGRPE (6)/RT.10 (23 June 2000) Rule 6.32. 409  Ibid. pp. 611–612. 410  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee (eds.) p. 618. 411  Ibid.; PCNICC/1999/WGRPE/RT.5 (1 July 1999) Rules 6.32. 412  Ibid.; PCNICC/2000/WGRPE/L.10 (27 June 2000) Rules 6.37.

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of Articles 103,107,109 and 111.413 This provision was then forwarded without amendment and was adopted as Rule 163(3).414 As to Article 71, the ILC draft Article 47(1)(a) recognised the authority of the Judges in maintaining order in the courtroom.415 No specific provision was made for punishment or sanctions according to Sluiter one notices an increasing reluctance to impose an obligation to appear on witnesses when looking at the legislative history regarding contempt power.416 It was in the last week of the Rome Conference when the need for a compromise became more and more urgent the rather neutral concept of what is now Article 71 was agreed upon. It appeared important to have a separate regulation besides Article 70 and it was necessary to have in addition an article dealing with a broad concept of misconduct before the Court by giving examples as guidelines and leaving the fine points to be regulated in the Rules.417 In addition with regards to sanctions for failing to comply with the Court’s order, that is the issue of compellability of witnesses, arose in the context of negotiations on Rule 74 concerning self-incrimination. It had first been proposed by South Africa to include a provision similar to Rule 65 at the beginning of Rule 74 but this was resisted. For many delegates it was important that a general rule regarding the obligation of witnesses to provide testimony be included in rules.418 Some discussion arose over the meaning of the word compellable and the fact that Article 14(3)(g) of the ICCPR uses the word compelled. In developing Rule 65 several concerns were raised and resolved in the final text, some clarification was required that the witness is compellable by the Court to provide testimony and not merely by one of the parties.419 Any sanctions that might 413  Ibid. PCNICC/1999/WGRPE/RT.5 /Rev.1 (11 August 1999) Rules 6.33. 414  Ibid. p. 619. 415   I LC 1993 Draft, pp. 121–22. 416  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 859; Goran Sluiter, ‘I beg you, please come testify’—The Problematic Absence of Subpoena Powers at the ICC’ (2009) New Criminal Law Review 590, 597. 417  Final Act of the United Nations Diplomatic Conference of Plenipotentairies on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/10, Annex 1, para. 6; Otto Trifferer, ‘Sanctions for misconduct before the Court,’ in Otto Trifferer ed. p. 928; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 854. 418  Donald K. Piragoff, ‘Evidence’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) pp. 349–401 at 400. 419  Ibid.

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follow under Rule 171 were to be the result of deliberate refusal to comply with the Court’s discretions under Article 71. As this was the general rule it was to be subject to exceptions of which the predominant ones should be specifically mentioned Rules 73, 74 and 75. The balances in Rule 65 were not totally sufficient for all delegations; nonetheless realizing that the product of the negotiations was a difficult compromise these delegations did not block the adoption of a consensus text.420 According to Friman the general approach regarding Article 70 was to clarify how the article related to the rest of the Statute, that is to what extent other provisions of the Statute applied to the operation of Article 70. The rules mainly address procedural issues but some are more substantive in nature.421 The ICC has been provided with a procedural framework for their application, certain issues still remain to be elaborated through its case law.422 According to Shahram Dana the ICC’s authority to impose sanctions for what can be generally considered contempt of court could have easily been left to the Judges to develop under the doctrine of inherent judicial powers.423 Powles and Jones observe that the consolidated approach to matters of contempt and false testimony is a preferable basis upon which to proceed in such matters, rather than the existing procedures before the Ad Hoc Tribunals.424 I agree with Powles and Jones, with jurisdiction over these crimes given to the ICC and States, certain issues such as a State party extraditing its national who as a witness provides false testimony could be resolved by the State itself sanctioning a lying witness.425 The drafting of the provisions on offences against the court’s administration of justice demonstrates the common understanding that crimes that affect the credibility of the court’s proceedings should not go unpunished. Most especially the crime of false testimony, it illustrates that we 420  Ibid.; Silvia A.Fernandez de Gurmendi, ‘Elaboration of the Rules of Procedure and Evidence’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc. 2001) pp. 235–257. 421  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) p. 621. 422  Ibid. p. 622. 423  Shahram Dana, ‘Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing’, (2009) Journal of Criminal Law and Criminology 857, 919. 424  John R. W. D. Jones & Steven Powles, International Criminal Practice: The ICTY, ICTR, ICC, SCSL, East Timor Special Panel for Serious Crimes, War Crimes Prosection in Kosovo (Oxford University Press 2003) p. 343. 425  More on this is discussed in subsequent parts.

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live in a single community with shared moral values and obligations towards one another. 5.5.2 Analysis 5.5.2.1 False Testimony Illustration PRESIDING Judge . . . before starting your testimony, you have to take the solemn undertaking to tell the truth, and this is a solemn undertaking that has to be made. I am going to read it slowly so that you can understand the importance of it: “And I declare solemnly that I will tell the truth, all the truth, nothing but the truth.” Has the witness understood the formula of the solemn undertaking? THE WITNESS: I understand, your Honour. PRESIDING Judge: You commit yourself to say the truth, all the truth and nothing but the truth? THE WITNESS: Yes, I do, your Honour. PRESIDING Judge: The Court will, therefore, ask the witness to listen very attentively. You have just said that you will tell the truth. If, during your testimony or in responding to the questions which are put to you, you do not say the truth, you can then be prosecuted before the Court for false testimony. And if this is demonstrated, you could be subject to conviction. Have you understood that fully? THE WITNESS: I understand, your Honour. PRESIDING JUDGE: (Interpretation) The Court takes note that it has been satisfied under Article 69(1) and Rule 66(1) and (3).426 The above illustration reiterates the importance of the witness being reminded by the Judges who represent this cosmopolitan court prior to testifying that they are liable to prosecution for false testimony. The Court has jurisdiction to prosecute giving false testimony to the extent that the person made an undertaking to tell the truth in accordance with Article 69(1). Thus it does not apply when witnesses testify without making a declaration as is permitted exceptionally.427 False testimony must be committed intentionally in accordance with Article 70(1). Article 30 shall be applicable law here to prove 426  Katanga et al. Transcript pp. 4–5. 427  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 855.

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intent it provides that ‘unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge’. Paragraph 2 provides that ‘a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’. Finally, paragraph 3 defines ‘knowledge’ as meaning awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly. If it is proven that a witness has intentionally provided false testimony the applicable principles and procedures governing the Court’s jurisdiction are provided in the rules pursuant to Article 70(2). Article 21 provides for applicable laws and Rule 163 establishing that Part III dealing with general principles of law is both applicable to perjury. Rule 165 sets out the procedure for ‘investigation, prosecution and trial’ of offences against the administration of justice under Article 70. Rule 165(1) provides that the Prosecutor may initiate and conduct investigations with respect to the offences defined in Article 70 on his/her own initiative, on the basis of information communicated by a Chamber or any reliable source. Proceedings are to be commenced before the Chambers with a right of appeal under Article 81. The procedure for prosecution seems to be similar with the core crimes with the exception of Article 53 dealing with initiation of an investigation and Article 59 dealing with arrest proceedings in the custodial State.428 If the Court decides to exercise jurisdiction, Rule 164(2) provides offences defined in Article 70 shall be subject to a period of limitation of five years from the date on which the offence was committed, provided that during this period no investigation or prosecution has been initiated. The period of limitation shall be interrupted if an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to Article 70(4)(a). In the case of alleged perjury committed in the presence of a Chamber, the prosecutor may orally request that Chamber to order the immediate arrest of the person concerned.429 Although the Court may choose to issue an arrest warrant, State Parties are not under an obligation to enforce it.430

428  Rule 165(2). 429  Rule 169. 430  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 857.

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Article 70(3) provides a specific penalty provision authorizing the ICC to impose a maximum of five years imprisonment plus a fine. Enforcement of sanctions imposed with respect to offences defined in Article 70 shall be subject to a period of limitation of 10 years from the date on which the sanction has become final. The period of limitation shall be interrupted with the detention of the convicted person or while the person concerned is outside the territory of the State Party.431 In imposing a fine the Court shall allow the convicted person a reasonable period in which to pay the fine. If the convicted person does not pay a fine imposed in accordance with the conditions set forth in Rule 166(4) appropriate measures may be taken by the Court pursuant to Rules 217–222 in accordance with Article 109. Where, in cases of continued wilful non-payment, the Court, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort impose a term of imprisonment in accordance with Article 70(3). In the determination of such term of imprisonment, the Court shall take into account the amount of fine paid.432 Also, Article 77 dealing with applicable penalties does not apply in contempt sanctions. It is applicable only to a “person convicted of a crime referred to in Article 5.433 5.5.2.2 Case-Law The issue of allegations of false testimony has been a key subject at ICC trials. Some witnesses have lied about their age or even about events that took place. Intermediaries have also been accused of inducing witnesses to provide false testimony.434 This section shall examine some of the cases below and the approach taken by the Court. 5.5.2.2.1 Katanga et al., Case In Katanga a certain witness P-159 stated several times to be at Bogoro when it was attacked, while in fact, he was in Bunia. After discovering that this witness had lied, the prosecution informed the Court that it would no longer rely on 431  Rule 164(3). 432  Rule 166(4)(5). 433  See Rule 166(2). 434  See Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015’ para. 17; Lubanga Decision on Intermediaries, paras. 16, 21–27, 36, 39 & 140; Prosecutor v. Katanga et al., Transcript, ICC-01/04-01/07-T-151-Red-ENG WT 08-06-2010 1-67 SZ T, 8 June 2010, pp. 22–25; Prosecutor v. Katanga et al., Transcript, ICC-01/04-01/07-T-190-Red-ENG WT 22-09-2010, 22 September 2010 (hereinafter Katanga Transcript 22 September 2010) pp. 1–5; Prosecutor v. Katanga et al; Transcript, ICC-01/04-01/07-T-220-Red-ENG WT, 22 November 2010, pp. 55–59; Ngudjolo Judgment paras. 98 & 280; Kenyatta Article 64 Decision para. 39.

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the witness to prove its case against the two accused (Katanga and Ngudjolo).435 The defence alleged that a prosecution witness who had testified before the Judges and whose testimony was no longer relied by the Prosecutor had lied during his testimony. The defence requested the Judges to order that legal proceedings for perjury against the witness be initiated.436 The Judges considered that the prosecution needed to be given some time to investigate the situation before deciding whether or not to initiate proceedings against the witness.437 However the Judges held that: “Considering that more than a year has passed since the Prosecution informed the Chamber of its renunciation of the testimony of witness P-159, the Chamber is of the view that the Prosecution has had sufficient time to determine its position in relation to this issue. As perjury is a very serious matter, the Chamber hopes that the Prosecution has meanwhile taken the necessary steps to investigate the issue and has decided on the appropriate course of action.”438 In its response the prosecution stated that it is acutely sensitive to the need to protect the integrity of the Court’s proceedings. It will not hesitate to investigate or, where appropriate, initiate prosecution of persons regardless which party calls them or whether they are called as court witnesses who knowingly and intentionally give material false testimony. However, it also believes that, absent some pressing need, the investigation and prosecution are best conducted after the proceedings themselves are concluded.439 With respect to witness P-159, the prosecution has not yet undertaken further investigative steps to pursue the contradiction between the testimony of the witness and other information in its possession and disclosed to the Chamber and parties. There may be instances when more immediate action is desirable or necessary. In this instance, however, the prosecution determined that there are no special circumstances warranting action before the final judgment and on balance concluded that it is best to not appear to be trying to influence the ongoing

435  See Prosecutor v. Katanga et al., Decision on the Prosecution’s renunciation of the testimony of witness P-159, ICC-01/04-01/07-2731, 24 February 2011 (hereinafter, Katanga’s prosecution renunciation of testimony). 436  Prosecutor v. Katanga et al., Order to the Prosecutor regarding the alleged false testimony of witness P-159 ICC-01/04-01/07, 13 January 2012 paras. 1–2 (hereinafter Katanga false witness). 437  Ibid. para. 3. 438  Ibid. para. 4. 439  Prosecutor v. Katanga et al., Prosecution’s response regarding its investigations into the alleged false testimony of witness P-159, ICC-01/04-01-07, 31 January 2012, para. 5.

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proceedings.440 The Defence for Katanga agreed that the matter should be deferred until the end of trial.441 The Judges and the parties have fulfilled their obligations to ensure that perjured testimony should not be used as evidence against the accused and that the false witness should be investigated and prosecuted. It is still to be seen if after the Katanga judgment the Prosecutor will initiate proceedings against this witness. The Judges have reminded the parties that the Statute and Rules have vested the authority to initiate an investigation on the offences defined in Article 70 in the Prosecutor, whether he acts proprio motu or on the basis of information communicated to him by the Chamber or any other reliable source. The prosecution must thus be given an opportunity to make a decision in this regard. However, if the prosecution does not initiate proceedings, the Court may still decide to request the DRC to submit the case to its competent authorities, in accordance with Article 70(4) and Rule 162(4).442 It is also important to state that in another instance a certain witness P-279 was alleged to have produced false or forged testimony. The Judges held that all the inconsistencies pointed out by the defence in the testimony of Witness P-279 are related before everything else on the credibility of his testimony, rather than on a belief that he intentionally lied to the Court.443 If there is a doubt on the reliability of testimony, whether it relates to uncertainty about age of  the witness cannot, in any way, be sufficient to constitute false testimony, and the inconsistencies that could be identified in a testimony cannot also constitute false testimony. In the opinion of the Chamber, factors such as the personality of the witness, his demeanour in the courtroom, the manner in which he testified and gave an account of the events that he experienced or the consistency of his testimonies are all factors to be taken into consideration in the evaluation of the credibility of his testimony.444 5.5.2.2.2 Lubanga False Testimony/Intermediaries The precise role of intermediaries together with the manner in which they discharged their functions became an issue of major importance in the Lubanga trial. The Judges held that defence submissions were not dependent on specu-

440  Ibid. para. 6. 441  Ibid. footnote 6. 442  Katanga’s prosecution renunciation of testimony para. 18. NB Article 70(4) shall be discussed below. 443  Katanga Transcript, 22 September 2010 pp. 4–5. 444  Ibid.

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lative assertions.445 They indicated that what had once been unsubstantiated allegations about the behaviour of the intermediaries was now supported by evidence, although the Judges at the time had not formed any conclusions on that evidence.446 A certain witness 15 admitted providing the Prosecutor with a false name and admitting his witness statement did not reflect the truth of what happened because he was persuaded by intermediaries to say things that were not true and accurate.447 After this revelation the prosecution indicated that it did not wish to recall witness 15 to continue his evidence.448 The Judges ruled that there is now a real basis for concern as to the system employed by the prosecution for identifying potential witnesses. On the evidence, there was extensive opportunity for the intermediaries, if they wished to influence the witnesses as regards the statements they provided to the prosecution, and, as just set out, there is evidence that this may have occurred.449 The Judges considered that in these circumstances the defence should be provided with the opportunity to explore whether the intermediary in question might have attempted to persuade one or more individuals to give false evidence.450 The Judges made several orders for the prosecution to recall those witnesses and intermediaries. The Judges later ordered a stay of proceedings when the prosecution refused to disclose the identity of one of the intermediaries concerned to the defence. It ruled that it could not offer a fair trial if the Prosecutor failed to follow court orders.451 However, the Appeals Chamber 445  Lubanga Decision on Intermediaries, para. 135; see also Lubanga Judgment paras. 291. 446  Ibid. para. 37. 447  Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015’ para. 17; see also Lubanga Decision on the Press Interview with Ms Le Fraper du Hellen, ICC-01/04-01/06, 12 May 2010 para. 42. 448  Ibid. paras. 17–18; NB: The Judges held that such an indication by the Prosecution does not alter the underlying position that witness 15 was called by and has testified for the Prosecution and that he currently remains a Prosecution witness whose evidence was adjourned by the Court in order for further written statement to be taken. 449  Lubanga Decision on Intermediaries para. 138. 450  Ibid. paras. 139, 143 & 147; see also Prosecutor v. Lubanga, Judgement on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings pending Further Consultations with the VWU”, ICC-01/04-01/06OA18, 8 October 2010 (hereinafter Lubanga Appeal decision to stay proceedings). 451  Prosecutor v. Lubanga, Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, ICC-01/04-01/06-2517-Red, 8 July 2010, para. 31.

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overturned the decision. It ruled that the Trial Chamber should have imposed sanctions on the prosecution pursuant to Article 71 for deliberate refusal to comply with its orders before resorting to imposition of a stay of proceedings.452 Subsequently, the defence requested for a permanent stay on the ground that the evidence was so unreliable and a fair trial shall not be guaranteed. The Judges refused to grant the request, as it was not necessary. They ruled that, they would be able to reach a final conclusion on the alleged impact of the involvement of the intermediaries on the evidence as well as the alleged prosecutorial misconduct and negligence.453 This they did in the Lubanga Judgment, it was ruled that some individuals who acted as intermediaries persuaded, encouraged or assisted witnesses to give false evidence. These individuals may have committed crimes under Article 70 and pursuant to Rule 165 the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution. Investigations can be initiated on the basis of information communicated by a Chamber or any reliable source. The Chamber communicated the information to the OTP and the Prosecutor was asked to ensure that the risk of conflict is avoided for the purposes of any investigation.454 The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities notwithstanding the extensive security difficulties it faced. A series of witnesses have been called during this trial whose evidence as a result of the essentially unsupervised actions of three of the principal intermediaries cannot safely be relied on. The Judges spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding credibility and reliability of these alleged former child soldiers given their youth and likely exposure to conflict they were vulnerable to manipulation.455

452  Lubanga Appeal decision to stay proceedings paras. 60–61 also see paras. 45–59. 453  Prosecutor v. Lubanga, Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”, ICC-01/04-01/06-2690-Red2, 7 March 2011, paras. 223–224, see paras. 183–224. 454  Lubanga Judgment paras. 483 & 1361. 455  Lubanga Judgment para. 482.

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It is relevant to note here that most of the witnesses at the Lubanga trial were children who were former child soldiers, understandably this is because Lubanga was charged under Articles 8(2)(b) (xxvi) and 8(2)(e) (vii) with the war crimes of conscripting and enlisting children under the age of fifteen years into his Forces patriotiques pour la libération du Congo [Patriotic Forces for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities.456 Following the Lubanga case it is demonstrated that children do lie and make allegations they know to be untrue, and from the evidence before the Court these child witnesses are manipulated by the intermediaries to provide false testimony. It is true that children may not understand to the degree that adult witnesses do to the scope of obligations resulting from the oath to speak the truth.457 The Judges must test the child’s competence by inquiring whether they understand between truth and lies. Beresford suggests that in addition to testing a child’s competence by inquiring into whether they understand what truth is and that they may be punished if they tell a lie, the Chamber will be able to require the child to explain the difference between truth and lies.458 He questions whether the competence test set out in the Statute can accurately predict whether a child will give complete and honest evidence. Since it is clear that not everyone who makes a solemn declaration will tell the truth even when they are aware that providing false testimony is an offence. According to him, understanding the importance of telling the truth cannot guarantee that testimony will be truthful, conversely, it does not follow that failing to adequately explain the difference between truth and lies will result in the child lying or making inaccurate statements.459 Nevertheless, in my view it is still relevant for child witnesses to be informed and reminded at all times during proceedings of the necessity to tell a true story as children are capable to identify what is true and what is a lie.

456  See ICC Situation and Cases Democratic Republic of Congo Thomas Lubanga Dyilo ICC-01/04-01/06 available at http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/ Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0106/Democratic+Republic+of +the+Congo.htm, (last visited April 2010). 457  See Rule 66(1)–(2). 458  See discussion in Stuart Beresford, ‘Child Witnesses and The International Criminal Justice System: Does the International Criminal Court Protect the Most Vulnerable?’ (2005) Journal of International Criminal Justice 721, 738. 459  Ibid. pp. 739–740.

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5.5.3 Cooperation with Regards to Witness Sanctions In accordance with Article 70(2) international cooperation with prosecutions for offences against the Court’s administration of justice, will be governed by the domestic laws of the State requested to furnish cooperation. Consequently, the text sets forth a separate regime for cooperation and judicial assistance for Article 70 offences. The ICC has primacy of jurisdiction, thus its exercise of jurisdiction is deemed discretionary. The Court has the option of exercising jurisdiction itself or requiring a State Party to do so. Before deciding whether to exercise jurisdiction, the Court may consult with State Parties that may have jurisdiction over the offence.460 Rule 162(4) provides that if the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to Article 70(4). The Court’s decision whether to assume jurisdiction itself or request that a State Party do so involves consideration of a number of factors pursuant to Rule 162(2). They include, the availability and effectiveness of prosecution in a State Party; the seriousness of an offence; the possible joinder of charges under Article 70 with charges under Articles 5 to 8; the need to expedite proceedings; links with an on-going investigation or a trial before the Court; and evidentiary consideration. During the drafting years it was made clear that the principle of complementarity does not apply to the offences under Article 70.461 The wordings found in Article 70(4), have been said to be rather restrictive, it is confirmed by Rule 166(2). The rule excludes the obligation of State Parties to arrest persons wanted by the Court.462 Nevertheless, there is a clear message on the desirability of encouraging States to take up prosecutions for false testimony under their own law.463 This is evidenced in Rule 165(2), which provides that Articles 53 and 59, and any rules there under, shall not apply to offences against the Court. To implement this duty Article 70(4)(a) obligates State Parties to extend their domestic criminal laws governing offences against the administration of justice to offences against the Court that have been committed on their territory or by their nationals. The Court has the authority to request States under Article 70(4)(b) to submit cases of witness contempt of the ICC to the States competent authority for prosecution. The reference to 460  Rule 162(1). 461  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) p. 622. 462  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) p. 858. 463  Ibid. p. 857.

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the case must refer to offences allegedly committed by nationals of the State or on its territory.464 If the Court decides to request the State Party to conduct the prosecution the State is required to ‘treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.’465 The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance.466 5.5.3.1 Subsequent Practice in Accordance to VCLT Article 31(3)(b) The inclusion of Article 70 offences presents no implementation problems in most countries.467 As will be evidenced in this part some States Parties have actually extended their domestic laws to cover crimes of false testimony while others still have drafts to be enacted by parliament. In extending their national legislation these States seek to ensure that once a witness who as a national provides false testimony, if requested by the ICC to assume jurisdiction over that witness such a State will be able to do so. In requesting the State to assume jurisdiction, the Court still exercises its authority and jurisdiction over that witness by ensuring that he/she gets sanctioned for the crime. Moreover, in my view the extension of jurisdiction of the Court to sanction false witnesses to States establishes the universal nature of the crime. The exercise of ‘universal’ jurisdiction over witness crimes is reflected in Article 70(4). This is justified by reference to cosmopolitan thought, the international community recognises that the crime of false testimony is grave because of the impact it may have to the Court’s evidence and proceedings, as well as to the accused/victims. By requesting States Parties to punish, the ICC is upholding its obligation to protect the rights of all. Also in imposing sanctions, States Parties enforce the duty of ensuring that the global community through the ICC is playing a prominent role in advancing cosmopolitan ideals regulating the behaviour of all even

464  Ibid. p. 858. 465  Kenneth Harris, ‘Offences against the Administration of Justice,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 917–923 at 923; Donald K. Piragoff ‘Article 70 Offences against the administration of justice’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1345. 466  Rule 162(3). 467  Roy S. Lee, ‘States’ Responses: Issues and Solutions’ in Roy S. Lee (eds.) States’ Responses to Issues arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law (Transnational Publishers 2005) p. 35.

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those who assist it in dispersing justice, by universally condemning the act in order to ensure the proper prosecution of international crimes. In Katanga on giving the prosecution an opportunity to initiate investigation for false testimony against a witness the Judges ruled that if the prosecution does not initiate proceedings, the Court may decide to request the DRC to submit the case to its competent authorities in accordance with Article 70(4) and Rule 162(4).468 In light of this, should the ICC requests the DRC to exercise jurisdiction over this witness and requests it submits the case to the DRC’s competent authorities, the DRC has the obligation to initiate investigation and prosecute this witness for false testimony before the ICC. The DRC draft legislation469 provides: Paragraphe 5 Atteintes à l’administration de la justice devant la Cour pénale international: Article 9 Il est inséré à la section V du Titre III du Livre II du Code pénal un article 132 ter et un article 132 quarter ainsi libellés : ‘Article 132 ter Les articles 128 à 132 bis s’appliquent, mutatis mutandis, aux procédures intentées devant la Cour pénale internationale et conformément au Statut de cette Cour.’ Article 128(4) provides ‘Le faux témoignage fait sous serment devant les tribunaux, un officier du ministère public ou un officier de police judiciaire agissant en exécution d’une commission rogatoire est puni de 2 à 5 ans de servitude pénale principale et de cent mille Francs congolais constants d’amende. Si l’accusé a été condamné soit à la servitude pénale à perpétuité, soit à la peine de mort, le faux témoin qui a déposé contre lui peut être condamné à la peine de servitude pénale à perpétuité. Toutefois, le faux témoin est exempt de peine s’il a rétracté spontanément son témoignage avant la décision mettant fin à la procédure d’instruction ou par la juridiction de jugement.’ It is important the the DRC draft legislation is approved by parliament as the provisions cited above will guaranty the prosecution and sanction of witnesses who as nationals commit the crime of false testimony. These provisions recognise the gravity of the offence of false testimony. 468  Katanga’s prosecution renunciation of testimony para. 18. 469  See DRC Loi Modifiant et Completant certaines dispositions du code penal, du Code Penal, du Code de l’organisation et de la Competence Judiciares, du Code Penal Militaire et du code Juduciare Militaire, en Application du Statut de la Cour Penale Internationale Kinshasa, Septembre 2005 available at http://www.legal-tools.org/en/go-to-database/ ltfolder/0_4067/#results (last visited July 2013); see also Coalition of the ICC at http:// www.iccnow.org/?mod=country&iduct=46 (last visited July 2013).

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Similarly, the Kenyan legislation provides in Section 12(1) that a person who, with intent to mislead, makes a false statement under oath or solemn affirmation before a Judge of the ICC or an official of that Court who is authorized by the Court to permit statements to be made before him, knowing that the statement is false, is guilty of the offence of perjury and liable on conviction to imprisonment for a term of not more than seven years. Subsection 2 provides Subsection (1) shall apply—(a) whether or not the statement is made in judicial proceedings of the ICC; and (b) whether the statement is made by affidavit, solemn declaration or deposition or orally. However, subsection (1) shall not apply to a statement that is made by a person who is not specially permitted, authorized or required by law to make that statement.470 According to Section 18 a person who is alleged to have committed an offence under Section 12 may be tried and punished in Kenya for that offence if (a) the act or omission constituting the offence is alleged to have been committed in Kenya or on board an aircraft or vessel which is registered in Kenya; or (b) at the time the offence is alleged to have been committed, the person was a Kenyan citizen or was employed by Kenya in a civilian or military capacity; or (c) the person is, after commission of the offence, present in Kenya. In addition, pursuant to Section 19(1)(a) if the ICC makes a request for assistance in any investigation or proceedings involving an offence against the administration of justice, that request shall be dealt with in the case of a request for surrender in the manner provided in Parts III and IV, which Parts shall apply with any necessary modifications and subject to any contrary provision in the Rome Statute or the ICC Rules. It is worth stating that Section 18 (a) and (c) are rather restrictive, subsection (a) provides for punishment if the crime is committed within Kenyan jurisdiction while (c) if the person after the crime is committed is present in Kenya. Thus, what happens to a witness who commits a crime before the Judges at the seat of the Court in The Hague or to a false witness who is a Kenyan national but resides in for instance Tanzania? Such persons will not be subject to trial and punishment under the Kenyan legislation. Bearing in mind that some witnesses will provide false testimonies in the Kenyan cases

470  Kenyan, The International Crimes Act 2008 Section 12(3); see Section 13 available at http:// www.legal-tools.org/en/go-to-database/ltfolder/0_8730/#results (last visited July 2013); see Jolyon Ford, ‘Country Study III: Kenya’, in Max du Plessis & Jolyon Ford (eds.) Unable or Unwilling? Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries (Institute for Security Studies 2008) pp. 57–78.

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before the ICC471 it is relevant that these provisions be amended to address the concerns mentioned above. Furthermore, the Ugandan Bill provides in Clause 13 that a person who gives evidence for the purposes of a proceeding before the ICC or in connection with a request made by the ICC that contains an assertion that, if made in a judicial proceeding in Uganda as evidence on oath, would be perjury, gives false evidence. That a person is liable, on conviction on indictment, to imprisonment for a term not exceeding 7 years who, in Uganda or elsewhere, gives false evidence. Furthermore, if the false evidence is given in order to obtain the conviction of a person for an offence for which the maximum punishment is not less than 3 years’ imprisonment, the punishment may be imprisonment for a term not exceeding 14 years.472 In my opinion, the text in Clause 13 “[. . .] that contains an assertion that, if made in a judicial proceeding in Uganda as evidence on oath, would be perjury, gives false evidence [. . .]” is problematic. If such an assertion by a witness is considered as perjury or false testimony by ICC Judges and does not meet the threshold of perjury in Ugandan judicial proceedings such a witness will not be prosecuted and sanctioned in Uganda. The text needs to be amended, as its present content will deprive the State to prosecute assertions not considered under Ugandan law. Furthermore, other State Parties not currently under ICC investigation have also ensured that they are able to cooperate with the Court in case it request for them to exercise jurisdiction pursuant to Article 70(4).473 For instance, the UK treats these offences in the same way as those offences against the administration of British justice.474 Section 54(1) of its Implementing legislation provides that a person who commits Article 70 offences may be dealt with as for the corresponding domestic offence committed in relation to a superior 471  See for instance in Kenyatta a certain Witness 4 stated he was lying about a meeting he alleged to have been present. See Kenyatta Article 64 Decision para. 39. 472  Uganda The International Criminal Court Bill, Bill No. 18 2006 Clause 13(1)–(3); see Clause 14 available at http://www.iccnow.org/documents/Uganda-ICC_Bill_2006.pdf (last visited July 2013); see also Prosecutor v. Kony et al., Amicus Curiae submitted pursuant to the Pre-Trial Chamber II “Decision on application for leave to submit observations under Rule 103” dated 5 November 2008, ICC-02/04-01/05, 18 November 2008, para. 24 fn. 17; Barney Afako, ‘Country study V: Uganda’, in Max du Plessis & Jolyon Ford (eds.) Unable or Unwilling? Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries (Institute for Security Studies 2008) pp. 93–114. 473  See also Roy S. Lee, ‘States’ Responses: Issues and Solutions’, in Roy S. Lee (eds.) States’ Responses to Issues arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law (Transnational Publishers 2005) p. 35. 474  UK International Criminal Court Act 2001.

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court in England and Wales. It further extends the giving of false testimony when under an obligation to tell the truth an offence against Section 1(1) of the Perjury Act 1911.475 Section 12 of Norwegian Implementing law extends its national laws to cover offences against the ICC. Sections 163–167 of the Norwegian Penal Code apply correspondingly to criminal liability for giving false testimony before the ICC.476 Section 12 also applies to offences committed abroad by Norwegian nationals. Subdivision J of the Australian Implementing law provides proposed Sections 268.102 perjury, namely where a person makes a false sworn statement in a proceeding before the ICC (“an ICC proceeding”) and is reckless as to whether or not the statement is true.477 If guilty of the above offence the penalty will be 10 years imprisonment.478 Article 3(2)(f) of the Swiss Implementing legislation provides that the Central Authority shall have the following responsibilities in particular. It shall forward to the competent authorities requests of the Court to undertake prosecutions in accordance with Article 70(4)(b).479 In order to extend its domestic laws to crimes against the Court, Finland added some clarifying provisions to the Penal Code concerning the jurisdiction in Finland for offences against the administration of justice.480 It provides in Section 12(a) that ‘for the purposes of application of the provisions on false statement, false denunciation, falsification of evidence, and threatening a person to be heard in the administration of justice, “a court of law” shall also mean the International Criminal Court and “criminal investigations” shall also mean an investigation referred to in the Statute of the International Criminal Court’.481 The States examined above have acknowledged the universal sanction of witnesses and ceded control of their nationals to cosmopolitan control by implementing legislation which contains provisions of criminal sanctions for witness false testimony at the ICC. They have reiterated the fact that we share common values and live in a single community in extending their penal laws to cover crimes of contempt of perjury before the ICC. In addition, they seek to 475  Ibid., Section 54(3)(a). 476  Act No. 65 of 15 June 2001 relating to the Implementation of the Statute of the International Criminal Court of 17 July 1998 (the Rome Statute) in Norwegian law. 477  Subdivision J—Crimes against the administration of the justice of the International Criminal Court, International Criminal Court (Consequential Amendment) Act 2002. 478  Subdivision J 268.102(1) 479  Swiss Federal Law of 22 June 2001 on Cooperation with International Criminal Court. 480  Finland Acts on the Implementation of the provisions of a Legislative Nature of the Rome Statute of the International Criminal Court and on the Application of the Statute. 481  Chapter 15: Section 12(a) Offences against the administration of justice by the Inter­ national Criminal Court (1285/2000), Extracts from the Finish Penal Code Act No. 1285/2000.

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create in their nationals acting as witnesses a legal and moral duty to the ICC to provide truthful evidence thereby not engaging in acts of perjury. These States are also better capable of determining the appropriate severity of sanctions against their nationals who come testify before the Court. Kenneth Harris suggests that the requirement that States make punishable such offences committed by their nationals will enable prosecution to take place where the witness is found in many cases and is particularly important if the State in question has a legal prohibition against the extradition of its nationals.482 If a State has legal prohibition against extradition of its nationals it becomes difficult for the ICC to prosecute a false witness because such a State may not extradite its national upon request from the Court. Hence, the State stands as best and suitable authority to bring such a false witness to trial before its national courts. However, it is difficult to determine to what degree national legal systems will comply and punish crimes committed by their nationals who testify before the ICC. There is the possibility of some States Parties being reluctant in accepting jurisdiction of prosecuting their nationals and it is still left to be seen if national courts will automatically accept jurisdiction and prosecute a national who in their view assists a foreign court i.e. ICC in providing testimony but does so falsely. Given the experiences of other tribunals such as the ad hoc tribunals it has been difficult for these courts to obtain the cooperation of States when it comes to extraditing witnesses who have been in contempt of the court or to enforce orders compelling such witnesses to come testify.483 States Parties should therefore ensure that their regular laws on extradition and international legal assistance are applicable also to requests from the Court with regards to witness contempt.484 Generally, States Parties have an obligation to cooperate with the ICC and this obligation must not only be limited to arrest, detention and surrender of accused persons, it should also extend to prosecuting witnesses who have committed crimes at the Court. Pursuant to Rule 167(1), the Court may request

482  Kenneth Harris, ‘Offences against the Administration of Justice,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) p. 923; Donald K. Piragoff, ‘Article 70 Offences against the administration of justice’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1337–1345 at 1345. 483  See Alexander Zahar, ‘International Court and Private Citizen’ (2009) New Criminal law Review 569, 572–578. 484  Hakan Friman ‘Offences and Misconduct against the Court’, in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Trans­ national Publishers Inc. 2001) p. 622.

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a State to provide any form of international cooperation or judicial assistance with regard to offences under Article 70, corresponding to those forms set forth in Part 9 of the Statute.485 In any such request, the Court shall indicate that the basis for the request is an investigation or prosecution of offences under Article 70. Thus, all States Parties who do not have implementing legislation sanctioning contempt and false testimony should have adequate procedures to assist the Court in criminalizing perjury. States created the ICC they have a vital interest in ensuring, maintaining and enforcing the adherence to international fair trial standards and integrity of the Court. According to James Cockayne, the norms that States usually seek to enforce do reflect a larger, supranational consensus prohibiting conduct of which individuals may reasonably said to have been given notice.486 At the start of trials witnesses are given such notice as not to commit perjury pursuant to Rule 66(3), the need for predictability is satisfied. The witness is aware if he/she provides false testimony, he/she will be prosecuted, and it is therefore open to the competent national authorities to enforce the norm. Also, the cosmopolitan conception of the duty to punish witness false testimony could be used to expand universal jurisdiction to cover the crimes before the ICC. In my view, in the presence of clear State practice and opinion juris evidencing such duty of prosecuting contempt and of perjury under customary international law,487 all States arguably have a permissive right, jurisdiction and obligation to impose criminal sanctions on witnesses who commit crimes against the ICC administration of justice. 5.5.4 Misconduct Article 71 gives the Court a degree of control over the recalcitrant witness and allows the imposition of a fine.488 It provides that the Court may sanction 485  Part 9 refers to part 9 of the Statute dealing with international cooperation and judicial assistance. 486  See James Cockayne, ‘On the Cosmopolitanization of Criminal Jurisdiction’ (2005) Journal of International Criminal Justice 514 at 523. 487  Looking at general principles of law common to the major legal systems of the world, the law of contempt originated and has remained a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences which produce a similar result. See Prosecutor v. Tadic, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, IT-94-1-A-R77, 31 January 2000, para. 15; Goran Sluiter, ‘The ICTY and Offences against the Administration of Justice’ (2004), 2 Journal of International Criminal Justice 631 at 631–632. 488  Rules 65, 75 and 171(1); see also William A. Schabas, An Introduction to the International Criminal Court (Cambridge University Press 2004) p. 152; Otto Trifferer, ‘Article 71, Sanctions for misconduct before the Court,’ in Otto Trifferer ed, Commentary on the Rome Statute

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persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions. In accordance to Rule 65(2) a witness who appears before the Court is compellable by the Court to provide testimony; this obligation can be enforced with a fine in accordance to Rule 171. If for instance a witness disrupts proceedings he/ she may be subject to the presiding Judges policing power to order expulsion and prohibit return to courtroom thereafter if the same witness ignores the presiding Judge’s orders he/she incurs the sanctions provided for in Article 71.489 The refusal to comply with the order must be deliberate the condition may be fulfilled when the behaviour obviously appears to be calculated to show disobedience or other misconduct to the Court.490 According to Michael Bohlander the ICC sanctions are inferior to those created by the Judges of the ICTY. He writes that the striking feature of the ICC law is that there is no reference to the inherent-power doctrine being a catch-all clause. The lack of a reference might indicate a solution to whether the inherentpower doctrine for the punishment of contempt represents the settled custom of an overwhelming majority of states, or represents a general principle of law.491 There is no specific customary international law directly applicable to this issue notwithstanding the ICC seeking truth and justice must possess the inherent power to deal with conduct of witnesses that interferes with its administration of justice. Article 71 serves the purpose of preventing obstructions to the administration of international criminal justice and of enabling the Court to exercise its jurisdiction properly undisturbed by illegal influences from witnesses. It is to avoid or exclude any behaviour, which may have a negative impact on the smooth running of the case especially by exercising an impartial jurisdiction according to the applicable law.492 It is clear from the of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1347–1360. 489  See Frank Terrier ‘The Procedure before the Trial Chamber’ in A. Cassese, P. Gaeta and J. R. W. D. Jones The Rome Statute of the International Criminal Court: A Commentary (Vol. II Oxford University Press 2002) pp. 1277–1318 at 1311. 490  Otto Trifferer, ‘Article 71, Sanctions for misconduct before the Court,’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1347–1360 at 1353–1354. 491  Michael Bohlander, ‘International Criminal Defence Ethics: the law of Professional Conduct for defence Counsel appearing before International Criminal Tribunals’ (2000) San Diego International Law Journal 75. 492  Otto Trifferer, ‘Article 71, Sanctions for misconduct before the Court,’ in Otto Trifferer ed., Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1347–1360 at 1350.

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RPE that it is intended the offences in Article 71, shall be dealt with summarily by the Chamber before whom the individual is appearing.493 If conduct covered by Article 71 also constitutes one of the offences defined in Article 70, the Court shall proceed in accordance with Article 70 and Rules 162–169.494 5.6 Conclusion As claimed in this study, the establishment of the ICC represents the expression of the cosmopolitan ideal, which in fact justifies authority and jurisdiction over witnesses. After ten years of existence, with two judgments and almost sixteen cases before it, has the ICC exhibited cosmopolitan features with regards to witnesses? So far, through its practices and jurisprudence it could be argued the ICC has been consistent to a greater extent with the cosmopolitan vision. Nonetheless, it has failed in some aspects to act in a way that is consistent with cosmopolitan principles. All is not lost as these failures could be addressed. This conclusion will highlight instances were it did uphold or failed in its cosmopolitan standing. The ICC has exercised its duty to ensure that witnesses are sourced so as to provide testimony to enable it ascertain the truth and achieve justice. However, the ICC is faced with practical challenges with regards to its handling of witnesses due to inadequate investigations in a number of cases.495 This was very evident in Lubanga, witnesses were introduced to the OTP/ Defence through intermediaries on the ground, and such pathways suggested possibility for enticement and inducement likely to confuse and compromise the witnesses understanding of why they are to testify and what they are to say. The former ICC Prosecutor failed in his obligation to ensure that sourcing of witnesses should be pressured on truth by delegating his investigative responsibilities to these intermediaries and failing to verify and scrutinize whether the witness testimony that was introduced to evidence was truthful. Nonetheless, the Judges have been vigorous in their efforts to source evidence

493  Rules 170–171. 494  Rule 172; see Otto Trifferer, ‘Article 71, Sanctions for misconduct before the Court,’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck 2008) pp. 1347–1360 at 1356–1360. 495  See for instance Lubanga Judgment paras. 195–197; Kenyatta Article 64 Decision paras. 122–123; Wyngaert Concurring Opinion paras. 1–4; Ngudjolo Judgment paras. 122–123 & 516; Mbarushimana confirmation decision para. 51.

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and to test the motivations and practices of investigators and intermediaries who generate witness appearance and eventual oral testimony.496 As a result of the way witnesses are sourced, witnesses should be prepared in a substantive way before testifying at trial so that untruthful testimony could be weeded out. The Court failed in Lubanga and Bemba to allow the practice of witness proofing.497 It however rectified this in Kenyatta and Ruto permitting witnesses to re-engage with the facts underlying their testimony which will enable them tell their stories accurately on the stand. The Judges, however emphasised that witness preparation should be on a case-specific approach.498 In my opinion, this decision is flawed. It is relevant that the practice be a permanent and consistent one in all cases. Witness proofing could be a determinant and important factor in the ICC moral court assertion as it protects the Court’s cosmopolitan image. Taking into account the nature of the crimes within the ICC jurisdiction, prior to trial it is necessary that the statement of every witness is revised testing whether there is consistency witness to witness. Witness preparation aimed at clarifying a witness’s evidence and carried out with full respect for the rights of the accused enables a more accurate and complete presentation of the evidence and assist the Court in its truth finding function. Furthermore, it is necessary that the Court maintain a comprehensive witness scheme, while getting the cooperation of all the necessary actors in the must credible way so as to enhance the Courts’ cosmopolitan image. In light of this, States should assist the Court with regards to ensuring that every witness who is necessary to the ascertainment of truth could be compelled to come testify. The laws and rules should be amended in such a way that the Judges be given the powers and authority to subpoena or order witnesses for the purpose of an investigation, or for the preparation or conduct of the trial. The ICC has guaranteed the witness right to protection. Witnesses have an obligation to testify and speak truth under oath while the Judges have judicial authority and jurisdiction over them ensuring that every testimony received is a genuine contribution to the ascertainment of the truth. As fact-finders the Judges have on several occasions carried out practices necessary for determining the truth. As evidenced they have the capacity during witness ­examination 496  See Lubanga Judgment paras. 482–483 & 1361; Lubanga Decision on Intermediaries paras. 138–147; Katanga Transcript pp. 10–27. 497  Lubanga decision on witness familiarisation and proofing paras. 42 Lubanga decision regarding the practice to prepare and familiarise witnesses para. 57; Bemba Unified protocol para. 34. 498  See Kenyatta decision on witness preparation paras. 30–54; Ruto decision on witness preparation.

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and the presentation of testimony to test its veracity. In order to ascertain truth the Judges have exercised authority over witness evidence to rule on the relevance and admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness.499 This has been proved by the Judges orders and decisions e.g. in Lubanga it rejected the testimony of certain victim-witnesses and also their participation as victims.500 Also unlike the ICTR and SCSL, considerable steps have been taken e.g. in Ngudjolo and Katanga to address cultural and interpretation issues that may affect the correct assessment of evidence.501 It has been established that the Court has jurisdiction and judicial authority to prosecute witness crimes. No witness has yet been prosecuted for contempt or false testimony, however the Judges held in Katanga that perjury is a very serious matter and took steps by requesting the Prosecutor to investigate a false witness.502 Similarly in Lubanga for those who induce witnesses to provide false testimony.503 It still remains to be seen if the Prosecutor will do so. The Katanga Judges have however indicated that they are still seized with the matter and if the Prosecutor fails to investigate it will request the State concerned to do so in accordance with Article 70(4).504 This is a remarkable decision as testimony before the ICC has become the cornerstone of a truth-evaluating function. In this context the Judge’s decision is captive to the integrity of witness testimony, hence if such testimony is false then the standing of the Court as a ‘moral court’ remains at risk. Surely in order to protect that integrity the harshest penalties and the most certain prosecutions must face the perjured witness and those who induce them. Also, the Katanga decision is consistent with the cosmopolitan vision of the Court. In my view, it reiterates the significance of truthful testimony and the universal nature of the crime of false testimony. The ICC on its own cannot maintain its cosmopolitan standing, it needs the cooperation of the international community most especially States Parties to achieve it. The Court 499  Lubanga Decision on judicial questioning para. 39; Lubanga admissibility of four documents paras. 24–25; Lubanga Manner of Questioning of witness DRC-OTP-WWWW-0015 para. 19; Katanga directions in accordance with rule 140 paras. 71 & 82; Katanga Transcript 22 September 2010 pp. 4–5. 500  Lubanga Judgment paras. 484 & 502, see also paras. 102–106. 501  Ngudjolo paras. 61–62 & 122; Katanga Transcript 19 October 2011 pp. 80–81. 502  Katanga false witness para. 4 503  Lubanga Judgment paras. 483 & 1361. 504  Katanga prosecution renunciation of testimony para. 18.

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depends on States to apply principles of cosmopolitan morality, it will exercise its authority by requesting the State to investigate and punish a false witness pursuant to Article 70(4). The ICC cosmopolitan standing is therefore dependent on the willingness of the State system to assist it in all aspects of its jurisdiction including sanctions on witnesses. States should become champion of cosmopolitanism505 by also acting inside their own borders implementing ICC legislation with provisions on offences against the ICC administration of justice. It is also important that those State Parties who have not included provisions for offences against the ICC administration of justice should amend their legislations. All in all, the ICC is being endowed with generating its own normative values and rules producing its own jurisprudence and having practices mirroring cosmopolitan principles. It is still in its early years, as a permanent cosmopolitan institution it can still make amendments in areas where it failed to exhibit cosmopolitan features.

505  See Daniele Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton University Press 2008) p. 171; Roland Pierik and Wouter Werner Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press 2010) pp. 4–5.

Chapter 6

Lessons Learnt: The Cosmopolitan Witness and Court As concluding remarks have been made after each chapter, this conclusion will be confined to more general comments as to the practice and jurisprudence of the ICC, ICTY, ICTR and SCSL with regard to witnesses. The chapter reviews the extent to which the institutions mentioned above exhibit cosmopolitan features. The objective is to determine what the position of witnesses before these tribunals is and to consider the implications of their position for the system of global governance. In addition, I make some proposals for the ICC to act as a cosmopolitan moral teacher bringing our shared moral values into the Court. 6.1

General Comments and Lessons Learnt

The central issue examined in the book is the authority and jurisdiction of the ICC and other international criminal courts over witnesses and the justification of imposing sanctions for witness crimes. It also examines to what extent these international criminal tribunals and courts have exhibited aspects of cosmopolitan principles. Chapter one sets the tone of the study, it is my claim that there is a cosmopolitan international community with shared values that are instantiated in international criminal tribunals and this is what justifies the assertion of jurisdiction and authority over witnesses for false testimony. Chapters two, three, four and five examine the practice and jurisprudence of these institutions evaluating the extent to which they uphold the cosmopolitan grounding instantiated in their treaties and rules. This I discuss below. It is evident from the practice of the ICC, ICTY, ICTR and SCSL that witness testimony counts as the most important source of evidence before these international criminal institutions. To an extent, the evidence shows these institutions further cosmopolitan principles in certain practices but fail to do so in others. Generally, the framework of these institutions does not define a witness; however the Judges in international criminal trials have tried to distinguish between the various kinds of witnesses.1 For the purpose of this research 1   See Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) p. 233.

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the jurisprudence of international tribunals has established two kinds of witnesses: crime-based and expert witnesses.2 The modelling of witnesses into two main groups by these institutions identifies the kind of testimonies accepted from each group. In my view the sourcing, selection and modelling process is meant to determine and construct the information necessary for ascertaining truth and achieving justice. The study demonstrates that the problem of witness false testimony at the ICC originates during the investigative stage where intermediaries tamper with witness evidence.3 This should be ameliorated— investigations are far from being adequate and should be improved.4 Sourcing witnesses is where the witness journey begins. This is the process in which the witnesses may have the first contact with the institution. The ICC prosecution team has a duty to ensure that there is a credible medium in sourcing its witnesses. It should properly verify its sources (intermediaries) ensuring that witnesses are not coerced or induced to provide false testimony as alleged in some cases.5 There must be a careful screening and selection of witnesses, interviewing of these persons is very important as well as the proper recording of the content of the interviews thus making it easier to evaluate properly the reliability and credibility of the accounts given to investigators. Based on the experiences of the ICTR and SCSL, the ICC whose cases are all at the moment from Africa should take into consideration factors that can impede witness credibility such as cultural, linguistic and educational factors.6 Taking into account, the manner by which witnesses are sourced and the fact that the prosecutor has little control over intermediaries who source witnesses, witness proofing is important. Like the ICTY, ICTR and SCSL, the ICC should have a consistent practice of proofing.7 In my opinion witness proof2  See SCSL Sesay Decision on Protective Measures paras. 30–33 & Norman Decision on Prosecution Request p. 5; ICTR Semanza Appeal Judgement para. 303; ICTY Gotovina Transcript 22 April 2008 p. 1928 & Blagojevic Decision for Admission of Expert Statements para. 19; For ICC see discussions in chapters five; Office of the Prosecutor Report on the activities performed during the first three years (June 2003–June 2006) p. 11. 3  Ibid. paras. 35 & 38–39. Lubanga Judgment paras. 483 & 1361. 4  See Lubanga Judgment paras. 195–197; Kenyatta Article 64 Decision paras. 122–123; Wyngaert Concurring Opinion paras. 1–4; Ngudjolo Judgment paras. 122–123 & 516; Mbarushimana confirmation decision para. 51. 5  Ibid. 6  The ICC has so far taken measures to address this, see Ngudjolo Judgment paras. 60–62 & 122 Katanga Transcript 25.11.2009; Prosecutor Report on Activities pp. 11–12. See chapters three and four on ICTR and SCSL respectively. 7  See ICTY Limaj proofing decision pp. 2–3; ICTR Karemera Proofing Decision para. 15; SCSL Sesay Statements of Witnesses; ICC Katanga Procedural Issues para. 18, Lubanga decision

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ing is a relevant nexus between truthful testimony and the moral court. It is a practice that will better guarantee the practicality of truthful testimony with the parties ensuring that before a witness comes to testify before the Court, he/she should be prepared in a substantive way for testimony at trial. To make it adequate, the proofing and familiarisation process should be undertaken with a goal to pressure on truth. In this way, the ICC will protect its cosmopolitan image, by protecting its credibility, evidence, the rights of the accused and other parties involved in proceedings. Furthermore based on failed witness allowance schemes of these courts and tribunals, the ICC mechanisms in place should be reviewed.8 Questions that need to be answered are how much does it cost to get witnesses to provide testimony? What is the impact of these payments to the testimony about to be given? Are payments made ethically? These payments should not be made in ways or with motives that seem to discredit the witness testimony. Full disclosure should be made as to the payments so as to properly assess the credibility of the witness. Jurisprudence holds that the duty to testify is a basic principle of judicial institutions and general law and goes to the notion of justice, ensuring that the evidence required for the proper administration of justice is available.9 In addition, witnesses are not the property of the parties10 and when the Judges decide, by way of subpoena, that their testimony is necessary for the establishment of the truth, they have to comply with it. In the case of the ad hoc tribunals, when ordered to appear, witnesses could not refuse to comply with the subpoena.11 However, as evidenced at the ICC, the drafters of the Statute failed to give the Judges authority to compel or subpoena witnesses. Given the importance of witnesses to these trials it is my view that their compulsory appearance before the Court is of utmost necessity. As a cosmopolitan institution with an obligation to bring to justice perpetrators of international crimes, the Judges need judicial powers and authority to call on any person who has information that may assist them to achieve justice and truth. The law must be regarding the practice to prepare and familiarise witnesses, Lubanga Protocol Witness Practices, Kenyatta decision on witness preparation para. 52, Ruto decision on witness preparation. 8  See chapters two to five. Some witnesses seem to be motivated to testify by the allowances given by these institutions. 9  See ICTY Jokic Contempt Trial Chamber judgement para. 25. 10  See ICC Lubanga decision on witness familiarisation and proofing para. 26; ICTY Petkovic Contempt Judgement para. 64. 11  See ICTY Petkovic contempt Judgement para. 64, Jokic Contempt Trial Chamber judgement para. 25; ICTR Kajelijeli Motion to hold members of the OTP in Contempt paras. 14–15, Bagosora Subpoenas Request para. 2.

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amended giving them express authority to require or order a prospective witness to attend at a nominated place and time for the preparation or conduct of a trial. To make it effective it must include that the order be a binding order issued under threat of penalty for non-compliance. Furthermore, the ICC and other tribunals have upheld their obligations towards the witness to tell his/her story and for the world to know the truth, by creating different mediums by which witnesses may tell their stories.12 Duties are attached to every witness to provide truthful testimony under oath but for child witnesses. In all the institutions, the reliance on witnesses is built into an adversarial (common-law) judicial system. The use of the adversarial model requires that evidence be scrutinized for instance orally through examination and cross-examination that is necessary for the determination of truth. Crossexamination plays the essential role in undermining a witness’s testimony or credibility and perhaps even establishing beneficial evidence. Judges are meant to be fact-finders, and credibility issues are to be determined by them. ICC Judges have become independent fact-finders with powers that allow them to determine the truth.13 These institutions all impose on witnesses’ responsibilities and duties that they are required to adhere to and in case of a breach there is an obligation to sanction the witness. Jurisprudence holds that the justification for contempt sanctions of witnesses is based on integrity, credibility and international fair trial process.14 Significantly, international Judges have maintained that contempt power is inherent to the Courts and it is well established that they have an inherent judicial authority to prosecute all forms of witness contempt of court.15 They have jurisdiction over persons other than the accused. Witnesses should not be considered as witnesses of the prosecution or of the defence but as witnesses of the Court.16 The practice of these institutions has taught that an international court will rapidly assume powers

12  For instance all institutions do allow video-link testimony where the witness is unable to testify in person. 13  I CC Lubanga admissibility of four documents paras. 24–25, Katanga directions in accordance with rule 140, para. 71. 14  ICTR Kajelijeli Motion to hold members of the OTP in Contempt paras. 14–15, GAA Judgement and Sentence, para. 10; SCSL Brima Decision on Defence Appeal Pursuant to Rule 77(j) para. 2. 15  ICTY Judgement on Allegations of Contempt against Vujin paras. 13 & 24, Delalic Motion Production of Notes; SCSL Margaret Brima Contempt Judgement paras. 9–12, Brima Samura Contempt Judgement para. 16. 16  ICC Lubanga decision on witness familiarisation and proofing para. 26.

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over individuals, other than the accused.17 International criminal law renders certain individual conduct directly punishable at the international level as confirmed by the jurisprudence that the spirit and purpose of the Statute confers on the Courts an incidental or ancillary jurisdiction over witnesses as they are such individuals other than those whom the tribunal may prosecute and try and are persons who are of assistance in the tribunal’s task of dispensing criminal justice entrusted to them.18 Jurisprudence also holds that false testimony under solemn declaration and contempt of the Tribunal are very grave offences, as they constitute a direct challenge to the integrity of the trial process.19 Also, the necessity to punish all conduct that tends to obstruct, prejudice or abuse the administration of justice is intended to ensure that the exercise of the jurisdiction that is expressly given to it by the Statute is not frustrated and that its basic judicial functions are safeguarded.20 Based on the evidence international criminal tribunals have failed in their incumbent obligations to punish witnesses for false testimony. Interestingly, since the establishment of these tribunals there has been just one prosecution for false testimony.21 It is problematic taking into account the thousands of witnesses who have come before these institutions. In many instances they have failed to investigate several allegations of witness false testimonies. The handling of contempt cases by the Judges has been criticised as less importance is being placed on witnesses who actually commit crimes of perjury.22 For instance at the ICTY in the Tadic case, Opacic was never prosecuted for providing false testimony even though he admitted to lying under oath.23 Similarly, this failure can be seen at the ICTR for instance 17  Alexander Zahar, ‘International Court and Private Citizen’, (2009) New Criminal law Review 569, 589. 18  ICTR Bagosora Subpoena Requests, para. 2. 19  ICTR GAA Judgement and Sentence, para. 5; ICC Katanga false witness para. 4. 20  ICTY Petkovic Contempt Judgement, paras. 25–26. 21  ICTR GAA Judgement and Sentence. 22   Alexander Zahar, ‘The Problem of false Testimony at the International Criminal Tribunal for Rwanda’ in Andre Klip and Goran Sluiter eds., Annotated Leading Cases of International criminal Tribunals, Vol. 25: the International Criminal tribunal for the Former Yugoslavia 2006–2007 (Intersentia, 2010); Goran Sluiter, ‘The ICTY and Offences against the Administration of Justice’ (2004) Journal of International Criminal Justice 631, 637–641; William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) pp. 855–856. 23  ICTY Opacic Decision on Application for Leave to Appeal; ICTY Press Release Tadic Case: Update Witness Opacic appeals against the order that he be returned to the custody of Bosnia and Herzegovina, CC/PIO/207-E The Hague, 2 June 1997; Tadic Decision on

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the Rwamakuba case and at the SCSL where the Judges are alleged to have disregarded testimonial deficiencies, realising in several occasions that witnesses have not been truthful in their testimony.24 These Tribunals failed to prosecute and uphold the cosmopolitan vision asserted in chapter one to prosecute lying witnesses. The situation may be different at the ICC there have been issues of false testimony provided by a number of witnesses no witness has yet been prosecuted. The Judges held in Katanga that perjury is a very serious matter and took steps by requesting the Prosecutor to initiate and investigate a false witness.25 Similarly in Lubanga for those who induce witnesses to provide false testimony.26 It still remains to be seen if the Prosecutor will do so, however the Katanga Judges have indicated that they are still seized with the matter and if the Prosecutor fails to investigate it will request the State concerned to do so in accordance with Article 70(4).27 This is a remarkable decision as testimony before the ICC has become the cornerstone of a truth-evaluating function. In this context the Judge’s decision is captive to the integrity of witness testimony, hence if such testimony is false then the standing of the Court as a ‘cosmopolitan moral court’ remains at risk. Surely in order to protect that image the harshest penalties and the most certain prosecutions must face the false witness. In my view the reluctance of Prosecutors and Judges of the ICTY, ICTR and SCSL to either order/or investigate allegations of false testimony as well as sanction witness false testimony may be a big challenge to the ICC cosmopolitan moral court assertion if it follows suit. Many may fear that if witnesses are being prosecuted for crimes against the ICC that they are suppose to assist, the prospect of the experience of being a witness will deter people from consenting to become willingly involved in this cosmopolitan court. Nonetheless if the truth is not told or it is compromised then the court has the obligation moral and factual to put it right. It can be argued that contempt provisions are Prosecution Motion to Withdraw Protective Measures for Witness ‘L’; Tadic, Order for the Prosecution to Investigate the False Testimony of Opacic. 24  See ICTR Rwamakuba Judgement paras. 195–214, Seromba Judgment para. 73, Nyiramasuhuko Judgment and Sentence paras. 334–338, Niyitegeka Judgment para. 222; SCSL Sesay Judgment para. 546, Taylor Judgment para. 345; see Tim Kelsall, Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press 2009) pp. 35 & 255–257; See also Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) pp. 136–148. 25  ICC Katanga false witness para. 4. 26  ICC Lubanga Judgment paras. 483 & 1361. 27  ICC Katanga’s prosecution renunciation of testimony para. 18.

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the best way to do this. Once a witness is prosecuted for providing false testimony it becomes evident that such testimony will not be used or admissible in evidence and will not be documented in archives. If truthful testimony is not given one must question whether relying on witnesses is the efficient and morally justifiable way to establish the truth, judicial facts and attain justice. False testimony is a serious offence that goes to the essence of justice, therefore witness sanctions should be taken seriously because the stakes may be very high especially when it leads to the conviction of an innocent person. Moreover the witness should be bound by and adhere to the duty to tell the truth while testifying. This he/she owes to society more so to the Court; it is an obligation that must be respected. 6.2

The Role of Witnesses and What this Tells Us about the System of Global Governance

Based on this study, the role played by witnesses in the global community has evolved over time, since we live in a global village, there is constant interaction and globalization has helped in this evolution. The witness schemes of the ICC and present day tribunals examined in this book show the way in which these cosmopolitan institutions become inextricably bound up with the construction of witness testimony. Witnesses come from all around the world; they do not only come from the particular state or country under investigation. As a result of global interaction and intervention in crisis situations, people do travel and communicate to assist the countries in crisis. This is the reason why we have witnesses of various nationalities coming to testify before the ICC and other tribunals. People of different nationalities find themselves in areas of conflict either as peacekeepers or staffs from NGO’s or IO’s, journalists, expatriates or again citizens of the crime State. According to the Stoics realization of human nature each individual has a necessary role to play in the history of the universe, and is a constituent of that universe. In actively endorsing that role, individuals become citizens of the universe.28 It follows then that, witnesses before the ICC play the role as individuals who assist in the prosecution of international crimes. It has been established throughout this research that witnesses have a very significant role in the achievement of global justice. Witnesses are more evident at the international level they represent communities and cultures their stories are crucial 28  Doug Al-Maini, ‘Cosmopolitanism, Stoicism, and Liberalism’ (2007) Philosophy Culture and Traditions 145, 157.

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to the moral theatre of the court and its practical decision-making. Global justice is critically impacted upon the voice of the witness because it is the voice of the witness that may assist the Judges to determine the guilt or innocence of the accused and ascertain the truth. Hence, as citizens of the universe who are meant to have a common interest to see to it that the truth is known and justice achieved witnesses are bound and obliged to provide truthful testimony that is a duty they owe to all humans. A witness must identify himself/herself to the global community with a primary allegiance to the community. In so doing they represent the rights of victims to get justice, that of the accused to a fair trial, that of the world to know the truth and that of preserving the credibility of proceedings and evidence before the ICC. This is an obligation that stretches beyond those whom each witness who comes before the ICC is related by ties of ethnicity or nation state. They have a responsibility to ensure that their behaviour does not have a negative impact on others but benefits others. Finally, witnesses have been given the possibility to directly participate in global choices through these international judicial bodies. Hence, the ICC should enforce its laws and rules directly involving these citizens of the world. How witnesses act or behave is of utmost significance, the practice, rules and jurisprudence should be to regulate witness behaviour most especially in terms of generating truthful testimony. This is because global justice places at its heart witnesses who should be truthtellers thereby enhancing the role of the Judges as truth-finders and facilitating the truth-finding goals of the Court and attainment of justice. This tells us that international criminal justice is about obligations owed to humanity as a whole emphasising the fact that we live in a single community with shared moral values where each individual must have a duty to ensure the rights of all. 6.3 Conclusion I maintain my arguments in chapter one that the ICC should act as a moral teacher using its cosmopolitan authority incorporated in the treaty and rules and assert jurisdiction over witnesses. As I observe, cosmopolitan thought should act as guidance to the Court, as it justifies the moral legitimacy of the Court as its treaty and rules are meant to protect the rights of all and the principles enshrined in it are widely recognised. Its legitimacy derives from the moral authority of its framers that is the States, individuals and NGO’s who gathered to form the laws. The laws, rules, principles, rights and values contained in the Statute and RPE with regard to witnesses are valid because the content of the Statute and RPE are morally good and sound. It is this correct

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moral values and soundness that validates the Court giving it authority and jurisdiction over witnesses. The ICC should therefore act as a moral teacher as the Court is morally legitimate because its content is shaped by the pertinent needs and concerns of the global community. The Statute and RPE thus creates valuable practices worth engaging with, as the principles and values are morally permissible hence legitimate because they are morally correct. In my view, it is of importance to reframe the role of witnesses before the ICC through the cosmopolitan principles enshrined in the Statute. Arguably, as a moral teacher the ICC should educate by imposing sanctions that not only deter people but also indicate that the act committed is not normal. As observed by Durkheim, the sociological function of criminal justice is not to deter possible offenders rather it is to provide the emotional reaction that says the criminal act will not become the normal state of affairs. It is to maintain inviolate the cohesion of society.29 Therefore, an ICC decision to impose sanctions on a false witness should be to educate the global community that not only are international crimes morally wrong but also providing false testimony, as a witness is also wrong. This indicates that false testimony is an act, which not only destroys the credibility of the Court’s proceedings, decisions and judgements, or the right to a fair trial but also violates the moral order upon which the integrity of ICC is built. It violates the moral order of truth, the search for truth about the conflict in question and the Court’s moral obligation to establish the truth. It destroys the whole purpose of the establishment of the Court, the common consciousness and shared values of the global community to respect the rights of all humans. Cosmopolitan grounding could be restored by putting morality into the court thereby challenging the problematic representations of truth, through understanding the complexity of victim interests and expectations for trial justice and their part within it. Judges need to understand the witness, understanding their culture towards justice and what actually motivates the witness to testify. If they understand the culture then they will learn to be much prone and alert to witness crimes committed before them. It is necessary that in embracing this cultural divergence the ICC educate the witnesses of the importance of its cosmopolitan vision. Again, the ICC Statute and RPE contain basic moral principles vetoing, not only murder, torture, genocide and rape but also false testimony. The ICC should argue it is furthering moral ideals and respect of the rights of all, at the same time coercing better behaviour and correct conduct from witnesses. In addition, the actual power of the Court will 29  See Jason Ralph, Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press 2007) p. 90.

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lie in its authority to function within the bounds of its cosmopolitan grounds. The ICC has the opportunity to build on its operating witness procedures, to create shared expectations in the world community over time, and to support its claim to be enforcing universal norms. Each time the Judges make decisions on investigating, prosecuting and sanctioning witnesses for false testimony, they issue a discursive claim to be enforcing enduring cosmopolitan moral principles. Thus in order to be effective, the ICC must constantly be prepared to argue that its work represents a genuine effort to impose universal codes of conduct across all times and places within its remit.30 Its legitimacy depends ultimately on its capacity to persuade observers that the application of its rules will be perceived fairly and justly by all, which in turn reflects the discursive nature of the ICC’s universal norms that is essential to understanding the universality of its juridical standing at the international level.31 Furthermore, it may be argued that the gravity of the crimes committed by witnesses is not as atrocious as international crimes. However, in maintaining universal fair trial standards, the integrity and credibility of the Court to achieve justice and truth, it is important that this crime should not be left unpunished in a goal of maintaining the cosmopolitan foundation in which the Court is built. Again, witnesses have an influence in judicial decision-making before the ICC; they are usually important parties in the giving of evidence before the Court to assist the Judges to make important decisions and judgements against perpetrators of grave crimes under the Court’s jurisdiction. ICC judges should therefore not be swayed by hostile local responses to their decisions if they are generated by values or attitudes whose transcendence is the pedagogic aim of international criminal justice.32 The provisions on truthful testimony and contempt of perjury are grounded in principle ‘normative reasons’, lying under oath is morally wrong and should be punished. The crime may not be a crime of grave international concern but it has serious impacts on either causing unfair convictions or acquittals. False testimony, for instance, against an accused may infringe the rights of the accused to a fair trial leading to a wrong30  Michael J. Struett, ‘The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court’, in Steven Roach, Governance, Order and the International Criminal Court (Oxford University press 2009) 107–132 at 113. 31  Steven Roach, ‘Introduction Global governance in Context’, in Steven Roach, Governance, Order and the International Criminal Court (Oxford University press 2009) p. 20. 32  Mirjan Damaska, ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329, 348.

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ful conviction and deprivation of the right to freedom. On the other hand it may lead to a wrongful acquittal of an accused person depriving victims of the right to justice, putting witnesses who testified against such an accused person at risk and also jeopardising the opportunity for the truth to be told. This may also bring the Court into disrepute; the cosmopolitan community would lose their trust in the Court as a cosmopolitan court furthering moral ideals and the rights of all humans. The ICC should create a medium for trust, where it trusts witnesses to give truthful and reliable account in their testimony, witnesses should trust the ICC to protect them, while the accused should trust the ICC to give just judgements. This trust is based on achieving fair, effective and credible justice whether the trust could be attainable is a matter of all, what we are as humans and what we perceive to achieve in these trials. A witness motive in, conforming his/her actions to ICC laws by providing truthful stories should be as a result of having an eye toward doing their part in maintaining the credibility of the Court and in assisting it to ascertain the truth and achieve justice. In light of the above, the global community through States and the Judges should therefore not accommodate or permit false testimony as this runs counter to the universal moral character of the Court. The Judges, Prosecutor and States Parties have a role to play in the realization of the Court maintaining its cosmopolitan character not only for the core crimes but also of that committed by witnesses. Importantly they should defend the authority of the Court thus promoting the universalization for the punishment of the crime. In a nutshell, witnesses should be taught to make it their business to provide truthful testimony, the ICC acting as a moral teacher should transform their minds with suggestions mentioned above. The Court should use its authority to punish; the imposition of sanctions is essential and central to its credibility. Importantly there should be the cultivation of mutual respect for the rule of law. Justice is credible only when it is truthful, efficient expeditious and fair. It is on this basis that confidence is instilled in those who appear before it that a judicial system like the ICC can be characterised as credible and have its authority respected.33 The ICC is said to be a powerful instrument for promoting the rule of law, its authority derives from the rule of law and respect

33  Marc Dubuisson, Anne-Aurore Bertrand and Natacha Schauder, ‘Contribution of the Registry to Rreater respect for the Principles of Fairness and Expeditious Proceedings before the International Criminal Court’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) 565–584 at 565.

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for its decisions depends on respect for the Statute that embodies international law.34 The Court should be visualised or seen as functioning on the basis of ideal justice rather than grievous injustice. Moral standards remain meaningless if the ICC cannot demonstrate its legitimacy. It is on this sole condition that the judicial work can proceed in line with the high procedural safeguards enshrined in the Statute and RPE. Being credible in the eyes of the international community is the first challenge the Court must take on, if it wishes to gain credibility the Court must first of all never depart from its most fundamental characteristic that it is a judicial body.35 Legitimacy in the eyes of the cosmopolitan society will be based on the institution’s moral and judicial standing. The ICC will enjoy a high degree of legitimacy because of the strong perception of its impartiality and fairness in the application of its laws. If it plays a multi-faced role in promoting and protecting legal rules and at the same time its moral standing. The Court has an independent duty to determine the truth; Judges have a responsibility of making certain that a complete true account is given so that the verdict can be based on the truth. Judges should regard trials as the culmination of a continuous effort at determining the truth. They are bound to establish the truth doing this through the assistance of truthful testamentary evidence. 34  Colleen Murphy, ‘Political reconciliation and international criminal trials’, in Larry May and Zachary Hoskins, International Criminal Law and Philosophy (Cambridge University Press 2010) p. 11. 35  Marc Dubuisson, Anne-Aurore Bertrand and Natacha Schauder, ‘Contribution of the Registry to Rreater respect for the Principles of Fairness and Expeditious Proceedings before the International Criminal Court’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court (Martinus Nijhoff publishers 2009) 565–584 at p. 566.

Bibliography 1

Table of Cases

1.1

International Criminal Court

Banda et al., Update on the status of discussions on the joint instruction of an expert witness; ICC-02/05-03/09, 30 May 2011 Bemba, Defence Submissions on the Order of Witnesses, ICC‐01/05‐01/08, 14 May 2013. ———, Decision on ‘Defence Motion for authorisation to hear the testimony of Witness D04-21 via video-link’ ICC-01/05-01/08, 3 April 2013 ———, Decision on the defence’s objection to the use of 10 documents by the prosecution during Witness 219’s testimony, ICC-01/05-01/08, 2 December 2011 ———, Decision on the Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony at trial, ICC-01/05-01/08-1016, 18 November 2010 ———, Decision on the procedures to be adopted for instructing expert witnesses, ICC-01/05-01/08, 12 February 2010 ———, Prosecution’s Request for Approval of its Proposed Experts and Joint Instructions by the Prosecution and Legal Representatives, ICC-01/05-01/08, 28 January 2010 Katanga et al., Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07, 21 November 2012 ———, Prosecution’s response regarding its investigations into the alleged false testimony of witness P‐159, ICC-01/04-01/07, 31 January 2012 ———, Order to the Prosecutor regarding the alleged false testimony of witness, P-159 ICC-01/04-01/07, 13 January 2012 ———, Transcript, ICC-01/04-01/07-T-325, 19 October 2011 ———, Decision on the Prosecution’s renunciation of the testimony of witness, P-159 ICC-01/04-01/07, 24 February 2011 ———, Transcript, ICC-01/04-01/07-T-220-Red-ENG WT, 22 November 2010 ———, Transcript, ICC-01/04-01/07-T-190-Red-ENG WT 22-09-2010, 22 September 2010 ———, Transcript, ICC-01/04-01/07-T-151-Red-ENG WT 08-06-2010 1-67 SZ T, 8 June 2010 ———, Prosecution’s response to “Victims and Witnesses Unit and Defence Teams joint protocol specifying concrete modalities of disclosure of protected witnesses’ identities”, 16 February 2010 ———, Directions for the conduct of the proceedings and testimony in accordance with Rule 140, ICC-01/04-01/07, 01 December 2009 ———, Transcript, ICC-01/04-01/07-T-81-Red-ENG WT, 25 November 2009

348

Bibliography

———, Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07, 20 November 2009 ———, Decision on the Prosecution’s Application to Add P-317 to the Prosecution Witness List, ICC-01/04-01/07-1537, 3 November 2009 ———, Decision on a number of Procedural issues raised by the Registry, ICC-01/0401/07, 14 May 2009 ———, Prosecution Response to Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a), ICC-01/04-01/07, 30 March 2009 ———, “Decision on the Use of Summaries of the Statements of Witnesses 267 and 243” issued on 3 April 2008, ICC-01/04-01/07, 25 June 2008 ———, Decision on the Application for Participation of Witness 166, ICC-01/0401/07-T, 23 June 2008 ———, Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, ICC-01-04-01-07-475, 13 May 2008 ———, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventative Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, ICC-01/04-01/07, 25 April 2008 ———, Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, ICC-01/04-01/07, 21 April 2008 ———, Decision on the admissibility for the Confirmation hearing of the Transcripts of interview of Deceased Witness 12, ICC-01/04-01/07, 18 April 2008 ———, Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, ICC-01/04-01/07, 23 January 2008 Kenyatta, Decision on defence application pursuant to Article 64(4) and related requests, ICC-01/09-02/11, 26 April 2013 Kenyatta et al., Decision on witness preparation, ICC-01/09-02/11, 2 January 2013 Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012 ———, Judgement on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings pending Further Consultations with the VWU”, ICC-01/04-01/06OA18, 8 October 2010 ———, Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”, ICC-01/04-01/06-2690-Red2, 7 March 2011 ———, Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, ICC-01/04-01/06, 8 July 2010

Bibliography

349

———, Decision on the “Prosecution’s Request for Non-Disclosure of Information in Transcripts of Re-Interviews with Prosecution Witnesses”, ICC-01/04-01/06, 7 June 2010 ———, Decision on Intermediaries, ICC-01/04-01/06, 31 May 2010 ———, Decision on the Press Interview with Ms Le Fraper du Hellen, ICC-01/04-01/06, 12 May 2010 ———, Decision on Judicial Questioning, ICC-01/04-01/06, 18 March 2010 ———, Decision on the Prosecution’s Applications to vary Protective Measures under Regulation 42 of 14 July and 17 August 2009, ICC-01/04-01/06, 22 February 2010 ———, Decision on the Defence request for a Witness to Evidence via video-link, ICC01/04-01/06, 9 February 2010 ———, Transcripts, ICC-01/04-01/06, 08 February 2010 ———, Decision on the Prosecution’s ‘Request on the manner of Questioning of witness DRC-OTP-WWWW-0015’ and Contact by the Prosecution with Court witnesses, ICC-01/04-01/06, 1 February 2010 ———, Second Decision on disclosure by the defence and Decision on whether the prosecution may contact defence witnesses, ICC-01/04-01/06-2192-Red 20, 20 January 2010 ———, Decision on the Manner of Questioning Witnesses by the Legal Representafives of Victims, ICC-01/04-01/06-2127, 16 September 2009 ———, “Preliminary and Final Decisions on the group of potential court witnesses”, ICC-01/04-01/06, 25 June 2009 ———, ICC-01/04-01/06 Transcript, 24 March 2009 ———, Prosecution’s Observations on Two Potential Expert Witnesses on Child Soldiers and Trauma and Submissions on the Instructions to the Experts, ICC-01/0401/0, 11 February 2009 ———, Transcript ICC-01/04-01/06, 30 January 2009 ———, Transcript ICC-01/04-01/06, 28 January 2009 ———, Reasons for Oral Decision lifting the Stay of Proceedings ICC-01/04-01/06, 23 January 2009 ———, Transcript, ICC-01/04-01/06, 16 January 2009 ———, Decision on the Prosecutions application for the Admission of the Prior Recorded Statements of two Witnesses, ICC-01/04-01/06, 15 January 2009 ———, Instructions to the Court’s expert on background and context, 17 December 2008 ———, Transcript, ICC-01/04-01/06, 25 November 2008 ———, Judgment on the appeals of the prosecutor and the defence against trial chamber I’s decision on victims participation of 18 January 2008, ICC-01/0401/06OA9OA10, 11 July 2008

350

Bibliography

———, Decision on the Admissibility of four Documents ICC-01/04-01/06, 13 June 2008 ———, Decision Regarding the Protocol on the Practices to be used to Prepare Witnesses for Trial, ICC-01/04-01/06-1351, 23 May 2008 ———, Separate and Dissenting Opinion of Judge Blattmann attached to Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/06, 28 April 2008 ———, Decision on Disclosure Issues Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/06, 24 April 2008 ———, Decision on Various issues related to Witnesses Testimony during Trial, ICC01/04-01/06-1140, 29 January 2008 ———, Decision on Victims Participation, ICC-01/04-01/06, 18 January 2008 ———, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the Decisions on the Pre-Trial Chamber in trial proceedings and the manner in which evidence shall be submitted, ICC-01/04-01/06, 13 December 2007 ———, Decision on the Procedures to be adopted for Instructing Expert Witnesses” issued by Trial Chamber I on 10 December 2007 ———, Decision Regarding the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial, ICC-01/04-01/06-1049, 30 November 2007 ———, Prosecution submissions regarding the subjects that require early determination procedures to be adopted for instructing Expert Witnesses, Witness Familiarization and Witness Proofing, ICC-01/04-01/06-952, 12 September 2007 ———, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, ICC-01/04-01/06-773, 14 December 2006 ———, Decision on the Practices of Witness familiarization and Witness Proofing, ICC-01/04-01/06, 8 November 2006 ———, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’ ” ICC-01/04-01/06-568, 13 October 2006 ———, Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses, ICC-01/04-01/06, 19 September 2006 Situation in the Democratic Republic of Congo (ICC-01/04) Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006 Mbarushimana, Decision on the confirmation of charges, ICC-01/04-01/10, 16 December 2011

Bibliography

351

Ngudjolo, Judgment pursuant to article 74 of the Statute, ICC-01/04-02/12, 18 December 2012 Ruto et al; Decision on witness preparation, ICC-01/09-01/11, 2 January 2013

1.2

International Criminal Tribunal for Rwanda

Akayesu, Decision on the Motion to Subpoena a Witness, ICTR-96-4-T, 19 November 1997 ———, Judgement, ICTR-96-4-T, 2 September 1998 ———, Decision on the Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness “R”, ICTR-96-4-T, 9 March 1998 ———, Order for Temporary Transfer of Three Detained Witnesses pursuant to Rule 90bis of the Rules of Procedure and Evidence, ICTR-96-4-T, 31 October 1997 Bagambiki et al., Decision on the Defence Motion for the Protection of Witnesses ICTR-97-36-T 1 October 1998; Prosecutor v. Nteziryayo, Decision on the Defence Motion for Protective Measures for Witnesses, ICTR-97-29-T, 18 September 2001 ———, Decision on the Motion of E.Bagambiki’s Defence seeking Orders for Protective Measures for its Witnesses, ICTR-99-46-I, 7 September 2000 Bagambiki, Decision on the Defence Motion for the Protection of Witnesses, ICTR-9736-T, 1 October 1998 Bagilishema, Judgement and Sentence, ICTR-95-1A-T, 7 June 2001 ———, Decision on the Request of the Defence for the Chamber to Direct the Prosecutor to Investigate a Matter with a View to the Preparation and Submission of an Indictment for False Testimony, ICTR-95-14-T, 11 July 2000 ———, Decision on the Request of the Defence for an Order for Disclosure by the Prosecutor of the Admissions of Guilt of Witnesses Y, Z, and AA, ICTR-95-1A-T, 8 June 2000 ———, Request for Cooperation pursuant to Article 28 of the Statute, ICTR-95-1A-I, 16 February 2000 Bagosora et al., Decision on Admission of Statement of Kabiligi Witness under Rule 89 (C), ICTR-98-41-T, 14 February 2007 ———, Decision on Testimony of Witness Amadou Deme by Video-link, ICTR-98-41-T, 29 August 2006 ———, Decision on Request for Authorization to the Kingdom of the Netherlands for Cooperation and Assistance, ICTR-98-41-T, 7 February 2005 ———, Decision on Admission of Statements of Deceased Witnesses, ICTR-98-41-T, 19 January 2005 ———, Decision on Motion Concerning Alleged Witness Intimidation, ICTR-98-41-T, 28 December 2004 ———, Decision on Bagosora Defence’s Request for a Subpoena Regarding Mamadou Kane, 22 October 2004

352

Bibliography

———, Decision on Request for Subpoena of Major General Yaache and Cooperation of the Republic of Ghana, ICTR-98-41-T, 23 June 2004 ———, Decision on Requests for Subpoenas, ICTR-98-41-T, 10 June 2004 Bagosora, Decision on the Extremely Urgent Request Made by the Defence for Protection Measures for Mr. Bernard Ntuyahaga, ICTR-96-7-I, 13 September 1999 ———, Decision on the Defence Motion for Inadmissibility of Disclosure Based on the Decision of 11 June 1998, Judge Khan’s Separate Declaration, ICTR-96-7-T, 7 December 1998 ———, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, ICTR-96-7-1, 31 October 1997 Barayagwiza, Appeals Decision, ICTR-97-19-AR72, 3 November 1999 Bizimungu et al., Decision on Prosper Mugiraneza’s Emergency Motion to Vary Witness List, ICTR-99-50-T, 12 June 2008 ———, Decision on Motion of Jeérôme-Cleément Bicamumpaka to Admit the Report of Expert Dr Bernard Lugan into Evidence Rules 73 and 94 bis of the Rules of Procedure and Evidence, ICTR-99-50-T, 21 February 2008 ———, Decision on Prosper Mugiraneza’s Motion for Records of all Payments Made Directly or Indirectly to Witness D (TC), 18 February 2008 ———, Decision on the admissibility of the expert testimony of Binaifer Nowrojee, ICTR-99-50-T, 8 July 2005 ———, Decision on Bizimungu’s Urgent Motion Pursuant to Rule 73 to Deny the Prosecutor’s Objection Raised During the 3 March 2005 Hearing ICTR-00-56-T, 1 April 2005 ———, Oral Decision on Qualification of Prosecution Expert Jean Rubaduka, ICTR99-50-T, 24 March 2005 ———, Decision on Jerome-Clement Bicamumpaka’s Motion for Judicial Notice of a Rwandan Judgement of 8 December 2000 and in the Alternative for an Order to Disclose Exculpatory Evidence, ICTR-99-50-T, 15 December 2004 GAA, Judgement and Sentence, ICTR-07-90-R77, 4 December 2007, ———, Decision on Prosecutor’s Application for Leave to amend the Indictment Rules 73, 50 and 51 and 62bis(A)(i) of the Rules of Procedure and Evidence, 30 November 2007 ———, Designation of a Trial Chamber to Consider the Guilty and Not Guilty Pleas of GAA Rule 62 of the Rules of Procedure and Evidence Case No. ICTR-07-90-R77, 15 November 2007 ———, Initial Appearance, ICTR-07-90-R77-I, Trial Transcript of 10 August 2007 ———, Confirmation of Indictment and Other Related Orders (TC), ICTR-07-90-R77, 11 June 2007 Gatete, Decision on Prosecution request for Protection of witnesses, ICTR-2000-61-I, 11 February 2004

Bibliography

353

Gacumbitsi, Appeal Judgement, ICTR-2001-64-A, 7 July 2006 Kajelijeli, Judgment & Sentence, ICTR 98-44A-T, 1 December 2003 ———, Decision on Kajelijeli’s Motion to Hold Members of the Office of the Prosecutor in Contempt of the Tribunal (Rule 77(C)), ICTR-98-44A-T, 15 November 2002 ———, Decision on Juvenal Kajelijeli’s Motion for Protective Measures for Defense Witnesses ICTR-98-44A-T, 3 April 2001 Kalimanzira Appeals Judgement, ICTR-05-88-A, 20 October 2010 Kalimanzira Judgement, ICTR-05-88-T, 22 June 2009 Kambanda, Judgement and Sentence, ICTR-97-23-S, Part C, 4 September 1998 Kamuhanda, Oral Decision Rule 115 and Contempt of False Testimony, ICTR-99-54A-A, 19 May 2005 ———, Decision on Kamuhanda’s Motion for Disclosure of Witness Statements and Sanction of the Prosecutor”, ICTR-99-54A-T, 29 August 2002 ———, Decision of J. Kamuhanda’s Motion for Protective Measures for Defence Witnesses, ICTR-99-54-T, 22 May 2001 Kanyabashi, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, ICTR-96-15-A, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, 3 June 1999 Karemera, Decision on Reconsideration of Admission of Written Statements in Lieu of Oral Testimony and Admission of the Testimony of Prosecution Witness Gay P1, ICTR 98-44-T, 28 September 2007 ———, Decision on Interlocutory Appeal Regarding Witness Proofing, ICTR-9844-AR73.8, 11 May 2007 Karemera et al., Decision on Joseph Nzirorera’s Motion to Dismiss for Abuse of Process: Payments to Prosecution Witnesses and “Requete de Mathieu Ngirumpatse en Retrait de L’Acte D’Accusation”, ICTR-98-44-T 27 October 2008; Prosecutor v. Karemera Decision on Abuse of Process SCSL-03-01-T, 18 May 2012 ———, Decision on Remand Following Appeal Chamber’s Decision of 16 February 2010, ICTR-98-44-T, 18 May 2010 ———, Decision on Joseph Nzirorera’s Motion for Subpoena to Rule 92 bis Witnesses or for Reconsideration ICTR-98-44-T, 26 April 2010 ———, Decision on Joseph Nzirorera’s Motion to Appoint an Amicus Curiae to Investigator GAP for False Testimony and to Appoint an Amicus Curiae to investigate Prosecution Witness BDW for false testimony, ICTR-98-44-T, 6 April 2010 ———, Decision on Joseph Nzirorera’s Motion for Reconsideration of Certificate of Safe Conduct, ICTR-98-44-T, 24 March 2009 ———, Decision on Joseph Nzirorera’s Motion to Dismiss for Abuse of Process: Payments to Prosecution Witnesses and “Requete de Mathieu Ngirumpatse en Retrait de L’Acte D’Accusation”, ICTR-98-44-T, 27 October 2008

354

Bibliography

———, Decision on Joseph Nzirorera’s Motion for Reconsideration of Oral Decision on Motion to Compel the Benefit of Witnesses G and T and Motion for Admission of Exhibit: Payments Made for the Benefit of Witness G, Rules 89(C) and 54 of the Rules of Procedure and Evidence ICTR-98-44-T, 29 May 2008 ———, Decision on Motion for Video-Link Testimony of Jean Baptiste Butera, ICTR98-44-T, 19 March 2008 ———, Decision on Prosecution Motion for Reconsideration of the Decision on Prospective Experts Guichaoua, Nowrojee and Des Forges, or for Certification, ICTR-98-44-T, 16 November 2007 ———, Decision on Joseph Nzirorera’s Motion for Inspection of Statements of Pierre Celestin Mbonankira—Rule 66 (B) of the Rules of Procedure and Evidence, ICTR98-44-T, 20 September 2007 ———, Decision on Defence Motions to Prohibit Witness Proofing, Rule 73 of the Rules of Procedure and Evidence, ICTR-98-44-AR73.8, 15 December 2006 ———, Decision on Prosecution Motion for Admission of Evidence of Rape and Sexual Assault Pursuant to Rule 92 bis of the Rules; and Order for Reduction of Prosecution Witness List ICTR 1998-44-T, 11 December 2006 ———, Decision on Defence Motion for Full Disclosure of Payments to Witnesses and to Exclude Testimony from Paid Witnesses (TC), 23 August 2005 ———, Decision on Disclosure of Witness Reconfirmation Statements, ICTR-9844-PT, 23 February 2005 Kayishema, Brief of Human Rights Watch as Amicus Curiae in opposition to Rule 11 bis transfer, ICTR-2001-67-I, 3 January 2008 Kayishema et al., Decision on the Motion for the Protection of Defence Witnesses, ICTR-95-1-T, 6 October 1997 Muhimana Appeals Chamber Judgment, ICTR 95-1B-A, 21 May 2007 Muhimana Judgment and Sentence, ICTR 95-18-T, 28 April 2005 Musema, Appeals Judgment ICTR-96-13-A, 16 November 2001 ———, Judgement and Sentence, ICTR-96-13-A, 27 January 2000 Muvunyi, Decision on Prosecutor’s Extremely Urgent Motion Pursuant to Trial Chamber II Directive of 23 May 2005 for Preliminary Measures to Facilitate the Use of Closed Video-Link Facilities, ICTR-2000-55A-T, 20 June 2005 ———, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rules 92bis of the Rules, ICTR-2000-55A-T, 24 March 2005 ———, Decision on the Prosecutor’s Motion for Orders for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment, ICTR-2000-55-1, 25 April 2000 Nahimana et al., Appeal Judgment, ICTR-99-52-A A07-0137(E)88, 28 November 2007 ———, Decision on An Oral Application by Defence Counsel Concerning Witness X, ICTR-99-52-T, 19 January 2002

Bibliography

355

Ndindabahizi, Judgement and Sentence, ICTR-2001-71-I, 15 July 2004 Ndindiliyimana et al., Decision on Bizimungu’s Request for witness DE 4-12 to testify via Video-link, ICTR-00-56-T, 2 November 2007 ———, Decision on the Prosecution Request for Witness Roméo Dallaire to give Testimony via Video-Link, ICTR-00-56-T, 15 September 2006 Niyitegeka, Decision on Motion for Clarification, ICTR-96-14-R75, 20 June 2008 ———, Appeals Judgment, ICTR-96-14-A, 9 July 2004 ———, Judgment, ICTR-96-14-T, 16 May 2003 Niyitega, Decision on the Prosecutor’s Motion for Protective Measures for Witnesses, ICTR-96-14-I, 12 July 2000 Nsengeyumva Decision on Protective Measures for Defence Witnesses and their Families and Relatives, ICTR-96-12-I, 5 November 1997 Nshogoza, Decision on Defence Motion for Order to Registrar to Provide Information to the Defence Regarding Prosecution Visits to Witness GAA at UNDF, ICTR-07-91-T, 28 April 2009 Nshogoza Indictment, ICTR-07-91-I, 7 January 2008 Ntagerura, Decision on the Defence Motion for Additional Protective Measures for Defence Witnesses, ICTR-96-10-I, 4 February 2000 Ntakirutimanaet al., Appeals Judgement, ICTR-96-10-A and ICTR-96-17-A, 13 December 2004 Nyiramasuhuko, Judgment and Sentence, ICTR-98-42-T, 24 June 2011 Nyiramasuhuko et al., Decision on Pauline Nyiramasuhuko’s Motion for Judicial Notice of an Appeal’s Chamber Factual Finding ICTR-97-21-T, 22 January 2009 ———, Decision on Prosecutor’s Motion for Verification of the Authenticity of Evidence Obtained out of Court, Namely the Alleged Diary of Pauline Nyiramasuhuko (Rules 89 (C) and 89 (D)), ICTR-97-21-T, 1 October 2004 ———, Decision on the Defence Motion for Disclosure of the Declarations of the Prosecutor’s Witnesses Detained in Rwanda and All Other Documents of Information Pertaining to the Judicial Proceedings in their Respect, ICTR-97-21-T, 18 September 2001 ———, Decision on the Prosecutor’s Motion for Leave to Call Additional Witnesses and for the Transfer of Detained Witnesses, ICTR-97-21-T, 24 July 2001 ———, Decision on the Prosecutor’s Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor’s Counsel, ICTR97-21-T, 10 July 2001 ———, Decision on Arsène Shalom Ntahobali’s Motion for Protective Measures for Defence Witnesses, ICTR-97-21-T, 3 April 2001 ———, Ntahobali, Decision on the Prosecutor’s Motion for Protective Measures for Victims and Witnesses, ICTR-97-21-T, 27 March 2001

356

Bibliography

Nyiramasuhuko, Decision on the Prosecutor’s Motion for Joinder of Trials, ICTR-97-21-I, 5 October 1999 ———, ICTR-97-21-I, 13 March 1998 ———, Extremely Urgent Motion by the Defence for Orders for Protective Measures for Defence Witnesses and their Families, ICTR-97-21-I, 19 January 1998 Renzaho, Decision on Defence Request for Video-link Testimony, ICTR-97-31-T, 27 June 2007 ———, Decision for Prosecutor’s Motion for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment, ICTR-97-31-I, 17 August 2005 Rukundo, Decision on the Defence Motions for Additional Time to Disclose Witnesses’ Identifying Information, To Vary its Witness List and for Video-Link Testimony, and on the Prosecution’s Motion for Sanctions, ICTR-01-70-T, 11 September 2007 Rutaganda, Decision on Protective Measures for Defence Witnesses ICTR-96-3-T, 13 July 1998 ———, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, ICTR-96-3-A, 8 June 1998 ———, Decision on the Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness ‘E’, ICTR-96-3-T T, 10 March 1998 ———, Decision on the Preliminary Motion submitted by the Prosecutor for Protective Measures for Witnesses, ICTR-96-3-T, 26 September 1996 Rwamakuba, Judgement, ICTR 98-44C-T, 20 September 2006 ———, Decision on the Prosecutor’s Motion for Protective Measures for Witnesses, ICTR-98-44-T, 22 September 2000 Semanza, Appeal Judgement, ICTR-97-20-A, 20 May 2005 ———, Decision on Defence Motion for Leave to Call Rejoinder Witnesses, ICTR-9720-T, 30 April 2002 ———, Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Rebuttal Evidence, ICTR-9720-T, 27 March 2002 ———, Decision on Semanza’s Motion for Subpeonas, Depositions and Disclosure, ICTR-97-20-I, 20 October 2000 Seromba, Judgment, ICTR-2001-66-I, 13 December 2006 Serushago, Sentence, ICTR-98-39-S, 5 February 1999 Simba, Appeals Judgement, ICTR-01-76-A, 27 November 2007 ———, Judgment and Sentence, ICTR-01-76, 13 December 2005 ———, Decision on the Defence Request for a Subpoena for Witness SHB, ICTR-0176-T, 7 February 2005 ———, Decision on Defence Request for Protection of Witnesses, ICTR-01-76-I, 25 August 2004

Bibliography

1.3

International Criminal Tribunal for the former Yugoslavia

357

Aleksovski, Judgement on Appeal by Anto Nobilo Against Finding of Contempt, IT-9514/1-AR77, 30 May 2001 ———, Appeals Judgement, IT-95-14/1-A, 24 March 2000 ———, Decision on Prosecutor’s Appeal on Admissibility of Evidence, IT-95-14/1-AR73, 16 February 1999 Blagojevic, Decision on Prosecution’s Unopposed Motion for Two Day Continuance for the Testimony of Momir Nikolic, IT-02-60-T, 16 September 2003 Blagojevic et al., Decision on Prosecution’s Motion for Admission of Expert Statements, IT-02-60-T, 7 November 2003 ———, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant To Rule 92 bis, IT-02-60-T, 12 June 2003 Blaskic, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, IT-95-14-A, 26 September 2000 ———, Judgment, IT-95-14-T, 3 March 2000 ———, Decision of Trial Chamber I in respect of the Appearance of General Enver Hadzihasanovic, IT-95-14, 25 March 1999 ———, Decision on the Defence Motion for Protective Measures for Defence Witnesses IT-95-14, 30 September 1998 ———, Decision on the Defence Motion for Protective Measures for Witnesses D/H and D/I, IT-95-14, 25 September 1998 ———, Appeals Judgement on the request of the Republic of Croatia for Review of the decision of the T.CH II, 18 July 1997, IT-95-14-AR108bis, 29 October 1997 ———, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-95-14, 29 October 1997 Brdanin, Decision on Motion for Acquittal Pursuant to Rule 98bis, IT-99-36-R77, 19 March 2004 ———, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, IT-99-36-T, 3 June 2003 ———, Order Instigating Proceedings against Milka Maglov IT-99-36-R77, 8 May 2003 ———, Decision on Prosecution’s Motion for Admission of Statements Pursuant to Rule 92bis—Bosanski Novi Municipality, IT-99-36-T, 17 January 2003 Brdanin et al., Decision on Interlocutory Appeal, IT-99-36-AR73.9, 11 December 2002 ———, Decision on the Interlocutory Appeal Against a Decision of the Trial Chamber, as of Right, IT-99-36-AR-73.7, 6 June 2002 Bulatovic Trial Judgement Seperate Opinion of Judge Bonomy on Contempt of Tribunal, 13 May 2005 Delalic, Judgment, IT-96-21-T, 16 November 1998

358

Bibliography

———, Decision on Motion of Prosecution for Admissibility of Evidence, IT-96-21-T, 19 January 1998 Delalic et al., Judgement, IT-96-21-A, 20 February 2001 ———, Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence, IT-96-21-T, 2 September 1997 ———, Decision on the Prosecution’s Motion for the Redaction of the Public Record, IT-96-21-T, 5 June 1997 ———, Decision on the Motion to Allow Witnesses K, L, and M to give their testimony by Means of Video-Link Conference, IT-96-21, 28 May 1997 ———, Decision on the Motion on Presentation of Evidence by the Accused, Esad Land‘o, IT-96-21-T, 1 May 1997 ———, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed “B” Through to “M”, IT-96-21-T, 28 April 1997 ———, Decision on Motion for Provisional Release Filed by the Accused Esad Land‘o, IT-96-21-T, 16 January 1997 ———, Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, IT-96-21-T, 11 November 1996 Delic, Decision on Paul Cornish Status as an Expert, IT-04-83-T, 20 March 2008 Dordevic, decision on Vlastimir Dordevic’s Motion for Reconsideration or certification to Appeal Regarding Proposed Expert Mr Alexandar Pavic, IT-05-87/I-T, 23 April 2010 Furundzija, Transcript, IT-95-17, 8 June 1998 Galic, Decision on the Expert Witness Statements Submitted by the Defence T-98-29-T, 27 January 2003 ———, Decision on Prosecution’s Application to Have Witness Barry Hogan Added to Its Witness List and His Evidence Admitted Pursuant to Rule 92 bis, IT-98-29-T, 2 August 2002 ———, Decision on the Prosecution’s Request for Admission of Rule 92 bis Statements, IT-98-29-T, 26 July 2002 ———, Decision on Interlocutory appeal concerning Rule 92bis(C), IT-98-29-AR73.2, 7 June 2002 Gotovina et al., Reasons for Decision granting Prosecution’s Motion to Cross-examine four proposed Rule 92bis Witnesses and Reasons for Decision to hear the Evidence of those Witnesses via Video-Conference Link, IT-06-90-T, 3 November 2009 ———, Decision on Expert Report and Addendum of Harry Konings, IT-06-90-T, 18 December 2008 ———, Oral Ruling, IT-06-90-T, 22 April 2008 Hartmann, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, IT-02-54-R77.5, Panel appointed by the President, 27 March 2009

Bibliography

359

———, Decision on Motion for Disqualification, IT-02-54-R77.5, 18 February 2009. Hadihasanovic et al., Decision on Interlocutory Appeal Relating to the Refreshment of the Memory of a Witness, IT-01-47-AR73.2, 2 April 2004 ———, Decision on Report of Prosecution Expert Klaus Reinhardt, IT-01-47-T, 11 February 2004 ———, Decision on Prosecution Application Pursuant to Rule 92 bis (A) of the Rules, IT-01-47-T, 4 February 2004 Halilović, Decision on Admission into Evidence of Prior Statement of a Witness, IT-0148-T, 5 July 2005 ———, Decision on Prosecution’s Motion to Vary its Rule 65 ter Witness List, IT-0148-T, 7 February 2005 ———, Appeals Decision on the Issuance of Subpoenas, IT-01-48-AR73, 21 June 2004 Haradinaj et al., Decision on Defence Request for Audio-Recording of Prosecution Witness Proofing Sessions, IT-04-84-T, 23 May 2007 ———, Decision on Prosecution’s Motion for Testimony via video-link for Witness 54, IT-04-84-T, 7 February 2007 Jelisić, Decision on Communication between Parties and Witnesses IT-95-10, 11 December 1998. ———, Contempt proceedings against Dragan Jokic, Judgement on allegations of contempt, IT-05-88-R77.1, 27 March 2009 Jokic Contempt Appeal Judgement Contempt Proceedings against Dragan Jokic, Judgement on Allegations of Contempt, IT-05-88-R77.1-A, 25 June 2009 Karadzic, Decision on Motion for Admission into Evidence of MFI D684, IT-95-5/18-T, 8 November 2010 ———, Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babić) pursuant to Rule 92quater, IT-95-5/18-T, 13 April 2010 Karadzic et al., Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence IT-95-5-R61, IT-95-18-R61, 11 July 1996 Kordic, Decision on Appeal Regarding Statement of a Deceased Witness, IT-9514/2-AR73.5, 21 July 2000 Kordic et al., Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, IT-95-14/2-AR 73.6, 18 September 2000 ———, Decision on Appeal Regarding Statement of a Deceased Witness IT-95-14/2-AR 73.5, 21 July 2000 ———, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2, 21 July 2000 ———, Decision on Prosecutor’s Motion on Trial Procedure, IT-95-14/2-PT, 19 March 1999 Krajisnik, Appeal Judgement, IT-00-39-A, 17 March 2009 ———, Order for Transfer of Detained Witness Pursuant to Rule90 bis IT-0039-T, 13 March 2006

360

Bibliography

———, Decision on Defence Motions to Prohibit Witness Proofing 15 December 2006 ———, Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, IT-00-39 & 40-PT, 19 July 2001 Krstic, Appeals Judgement, IT-98-33-A, 19 April 2004 ———, Appeals Decision on Application for Subpoenas, IT-98-33-A, 1 July 2003 ———, Judgement, IT-98-33-T, 2 August 2001 ———, Binding Order to the Republika Srpska for the Production of Documents, IT-98-33-PT, 12 March 1999. Kupreskic et al., Appeal Judgement IT-95-16-A, 23 October 2001 ———, Decision on Communication between the Parties and Their Witnesses, IT-9516-T, 21 September 1998 Kvocka et al., Decision on the Prosecution Notice of Affidavit Evidence, IT-98-30-PT, 30 October 2000 Limaj et al., Appeals Judgement IT-03-66-A, 27 September 2007 ———, Decision on Prosecution’s Motions to Admit Prior Statements as Substantive Evidence, IT-03-66-T, 25 April 2005 ———, Decision on Prosecution’s Third Motion for Provisional Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis, IT-03-66-T, 9 March 2005 ———, Decision on the Defence Motion on Prosecution Practice of Proofing Witnesses IT-03-66-T, 10 December 2004 Lukic et al., Decision on Second Prosecution Motion for the Admission of Evidence pursuant to Rule 92bis (Two Expert Witnesses), IT-98-32/T, 23 July 2008 Mejakic et al., Decision on Prosecution’s Motion for Admission of Trial Transcripts and Statements Pursuant to Rule 92bis and Rule 89(F) and Protective Measures, IT-0265-PT, 22 October 2004 Milosevic, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schroder, IT-02-54-T, 9 December 2005 ———, Decision on Interlocutory Appeal on Kosta Bulatovic Contempt Proceedings, IT-02-54-A-R77.4, 29 August 2005 ———, Decision on Prosecution Motion for Voir Dire Proceeding, IT-02-54-T, 9 June 2005 ———, Contempt Proceedings Against Kosta Bulatovic, Decision of Contempt of the Tribunal, IT-02-54-R77.4, 13 May 2005 ———, Decision on Testimony of Defence Witness Dragan Jasovic, IT-02-54-T, 15 April 2005 ———, Order on Admission of Documents (Including Exhibits of Witnesses Kosta Mihajlovic and Cedomir Popov) and Decision on Prosecution Motion Regarding Exhibits and Other Practicalities During the Defence Case, IT-02-54-T, 7 February 2005

Bibliography

361

———, Decision on Motion for Judgement of Acquittal, IT-02-54-T, 16 June 2004 ———, Separate Opinion of Judge O-Gon Kwon on Trial Chamber Confidential Decision Issued 28 January 2004, IT-02-54-T, 29 April 2004 ———, Decision on Prosecution Motion for Admission of Written Statements of Deceased Witnesses Ivan Rastija, Bosko Brkic, and Stana Albert Pursuant to Rule 92 bis (C), IT-02-54-T, 9 December 2003 ———, Transcript IT-02-54, 22 November 2002 ———, Judge Kwon’s Dissenting Opinion to oral decision on K12, IT-02-54-T-R77, 21 November 2002 ———, Confidential Decision on the Interpretation and Application of Rule 70, IT-0254-A, 23 October 2002 ———, Appeals Decision on Admissibility of Prosecution Investigator’s Evidence, IT-0254-AR73.2, 30 September 2002 ———, Decision on Prosecution’s Request to have Written Statements Admitted Under Rule 92 bis, IT-02-54-T, 21 March 2002 ———, Decision on Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69, IT-02-54, 19 February 2002 Milutinovic et al., Judgement volume 1 of 4, IT-05-87-T, 26 February 2009 ———, Decision on Sainovic Motion for Video-conference link for Dusan Matkovic, IT-05-87-T, 23 August 2007 ———, Decision on Sainovic Motion Requesting Testimony via Video-conferencing Link, IT-05-87-T, 3 August 2007 ———, Decision on Ojdanic Motion to Prohibit Witness Proofing, IT-05-87-T, 12 December 2006 Mrksic et al., Appeals Decision on Mile Mrksic’s Second Rule 115 Motion, IT-95-13/1-A, 13 February 2009 Mrksic, Decision Concerning the Use of Statements Given by the Accused, IT-9513/1-T, 9 October 2006 Naletilic et al., Decision on the Prosecutor’s Request for Public Version of Trial Chamber’s “Decision on the Motion to Admit Statement of Deceased Witnesses [. . .]” of 22 January 2002, IT-98-34-T, 27 February 2002 ———, Decision on the Admission of Witness Statements into Evidence, IT-98-34-T, 14 November 2001 ———, Decision on the Admission of Witness Statements into Evidence, IT-98-34-T, 14 November 2001 ———, Decision on Prosecutor’s Motion to take Additional Depositions for use at Trial (Rule 71), IT-98-34-PT, 5 June 2001 ———, Decision on Prosecution Motion for Admission of Transcripts and Exhibits Tendered During Testimony of Certain Blaskic and Kordic Witnesses, IT-98-34-PT, 27 November 2000

362

Bibliography

———, Decision on Prosecutor’s Motion to take Depositions for use at Trial (Rule 71) IT-98-34-PT, 10 November 2000 In the Case of Dragan Opacic, Decision on Application for Leave to Appeal, IT-97-7Misc.1, 3 June 1997 In the case against Florence Hartmann, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, IT-02-54-R77.5, 27 March 2009 In the case against Florence Hartmann, Decision on Motion for Disqualification, IT-0254-R77.5, 18 February 2009 In the Matter of Ljubica Petkovic, Judgement, IT-03-67-R77.1, 11 September 2008 In the Contempt case of Radislav Krstic, Order in Lieu of Indictment, IT-95-5118-R77.3, 27 March 2013 Perisic, Decision of Mr. Perisic’s Motion for the Admission of Evidence pursuant to Rule 92bis regarding the Prosecution Motion to Reopen, IT-04-81-T, 14 December 2010 ———, Decision on Expert Reports of Ewa Tabeau, IT-04-81-T, 23 April 2009 ———, Decision on Expert Report by Richard Philipps, IT-04-81-T, 10 March 2009 ———, Filing of Public redacted and Corrected version of 2 December 2008 Decision for Deposition pursuant to Rule 71, IT-04-81-T, 10 February 2009 ———, Order for Guidelines on the Admission and Presentation of Evidence and Conduct of Counsel in Court, IT-04-81-T, 29 October 2008 ———, Decision on Admissibility of Expert Report of Patrick Treanor, IT-04-81-T, 27 November 2008 Popović et al., Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, IT-05-88-AR73.2, 30 January 2008 ———, Decision on Appeals Against Decision on Impeachment of a Party’s own witness, IT-05-88-AR73.3, 1 February 2008 ———, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, IT-05-88-AR.73.2, 30 January 2008 ———, Decision on Defence Rule 94bis Notice regarding Prosecution Expert Witness Richard Butler, IT-05-88-T, 19 September 2007 ———, Order setting forth Guidelines for the Procedure under Rule 90(H)(ii), IT-0588-T, 6 March 2007 Prlic et al., Decision on Praljak Defence Notice Concerning Opening Statements under Rules 84 and 84bis, IT-04-74-T, 27 April 2009 ———, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, IT-04-74-AR73.14, 26 February 2009 ———, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, IT-04-74-AR73.6, 23 November 2007

Bibliography

363

———, Decision on the Prosecution Motion for Admission of Evidence Pursuant to Rules 92bis and quater of the Rules, IT-04-74-T, 27 October 2006 Seselj, Decision on Prosecution Motion for Reconsideration of the Decision on 7 January 2008 rejecting the Admission of Milan Babic’s Testimony, IT-03-67-T, 10 December 2010 ———, Decision on the Prosecution’s Consolidated Motion pursuant to Rules 89(F), 92 bis, 92ter and 92quater of the Rules of Procedure and Evidence” Filed Confidentially on 7 January 2008, IT-03-67-T, 21 February 2008 Sikirica et al., Decision on Prosecution’s Application to Admit Transcripts Under Rule 92 bis, IT-95-8-PT, 23 May 2001 Simic, Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews, IT-95-9-T, 11 March 2003 Simic et al., Decision on Prosecution Interlocutory Appeals on the Use of Statements not Admitted into Evidence Pursuant to Rule 92 bis as a Basis to Challenge Credibility and to Refresh Memory, IT-95-9-AR73.6 & IT-95-9-AR73.7, 23 May 2003 ———, Judgement in the matter of Contempt Allegations Against an Accused and his Counsel, IT-95-9-R77, 30 June 2000 Stanisic et al., Decision on Simatovic Defence Request for Certification to Appeal, IT-03-69-T, 17 February 2011 ———, Decision on Admission into Evidence of prior Testimony, Statement, and Related Documents concerning Witness JF-052, IT-03-69-T, 28 January 2011 ———, Decision Granting Prosecution Motion for Testimony of Witness ST244 to be heard via Video-Conference Link, IT-08-91-T, 11 November 2010 ———, Decision on Prosecution Motion for Admission of Evidence of Stevan Todorovic Pursuant to Rule 92quarter, IT-03-69-T, 29 October 2010 ———, Decision on Prosecution’s Motions for Admission of Written Evidence pursuant to Rule 92bis, IT-03-69-T, 7 October 2010 ———, Decision on Prosecution Motion for Leave to Bifurcate the Testimony of Expert Witness Christian Nielsen, Stanisic and Simatovic IT-03-69-T, 29 June 2009 ———, Decision on prosecution Motion for Deposition pursuant to Rule 71, IT-0369-PT, 26 May 2008 ———, Decision on Prosecution’s Submission of the Expert Report of Nena Tromp and Christian Nielsen Pursuant to Rule 94bis, IT-03-69-T, 18 March 2008 Strugar, Decision II on the Admissibility of Certain Documents, IT-01-42-T, 9 September 2004 ———, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, IT-01-42-T, 1 April 2004 Tabakovic, Sentencing Judgement, IT-98-3211-R77.I, 18 March 2010 ———, Indictment, IT-98-32/1-R77.1

364

Bibliography

Tadic, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, IT-94-1-A-R77, 31 January 2000 ———, Judgement, IT-94-1-T, 7 May 1997 ———, Order for the Prosecution to Investigate the False Testimony of Opacic, IT-941-T, 10 December 1996 ———, Decision on Prosecution Motion to Withdraw Protective Measures for Witness ‘L’, IT-94-1-T 5 December 1996 ———, Decision on the Defense Motion on Hearsay, IT-94-1-T, 7 August 1996 ———, Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link, IT-94-1-T, 25 June 1996 ———, Decision on the Prosecution’s Motion Requesting Protective Measures for Victims and Witnesses, IT-94-1-T.10 August 1995 Tolimir, Revised Order Concerning Guidelines on the Presentation of Evidence and Conduct of parties during Trial, IT-05-88/2-T, 4 February 2011 ———, Decision on Prosecutions Motion for Leave to amend the Rule 65ter Witness list and for Disclosure of an Expert Witness Report pursuant to Rule 94bis, IT-0588/2-T, 4 October 2010 ———, Decision on Prosecution’s Motion for admission of Written evidence pursuant to Rules 92bis and 94bis, IT-05-88/2-T, 7 July 2010

1.4

Special Court for Sierra Leone

Brima et al., Decision on Prosecution Appeal against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confidentiality, SCSL-04-16-AR73, 26 May 2006 ———, Decision on Prosecution Request for Leave to Call an Additional Witness (Zainab Hawa Bangura) Pursuant to Rule 73bis(E), and on Joint Defence Notice to Inform the Trial Chamber of Its Position Vis-à-vis the Proposed Expert Witness (Mrs. Bangura) Pursuant to Rule 94bis, SCSL-04-16-T-365, 5 August 2005 ———, Decision on Defence Appeal Motion pursuant to Rule 77(j) on both the Imposition of Interim Measures and an Order pursuant to Rule 77(C )(iii), SCSL04-16, 23 June 2005 ———, Decision on Objection to Question Put by Defence in Cross-Examination of Witness TF1-227, SCSL-04-16-T, 15 June 2005 ———, Decision on Joint Defence Motion to Exclude All Evidence From Witness TF1277 Pursuant to Rule 89 (c ) and or Rule 95, 24 May 2005 ———, Decision on Joint Defence Motion to Exclude all Evidence from Witness TF1277 pursuant to Rule 89(C) and or Rule 95, SCSL-04-16-T-280, 24 May 2005 Brima Samura Judgement in Contempt Proceedings, SCSL-05-01, 26 October 2005 Eric Senessie, Judgement in Contempt Proceedings, SCSL-2011-01-T, 12 June 2012 Fofana, Appeals Judgment SCSL-04-14-A, 28 May 2008

Bibliography

365

Fofana et al., Judgement SCSL-04-14-T, 2 August 2007 Gbao Decision on the Prosecution Motion for Immediate Protective Measures for Victims and Witnesses and for Non-Public Disclosure, SCSL-2003-09-PT, 10 October 2003 Independent Counsel v. Bangura et al.; Judgement in Contempt Proceedings, SCSL2011-02-T, 25 September 2012 Kanu, Decision on Defense Motion for an Order under Rule 54 with Respect to Release of Exculpatory Evidence, SCSL-04-16-PT, 1 June 2004 Kodewa, Ruling on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Disclosure and Urgen Request for Interim Measures until Appropriate Protective Measures are in place, SCSL-04-14-T, 10 October 2003 Margaret Brima Sentencing Judgment in Contempt Proceedings, SCSL-2005-02/SCSL2005-03, 21 September 2005 Norman, Decision on Prosecution Request; Decision on Fofana Submission; Sesay et al., Decision on Prosecution Request for Leave to Call an Additional Expert Witness, SCSL-04-15-T, 10 June 2005 Norman et al., Decision on Norman Request to Admit Documents in Lieu of the Testimony of Abdul-One Mohammed pursuant to Rules 89( C) and 92bis, SCSL-0414-T, 15 September 2006 ———, Decision on Interlocutrory Appeals against Trial Chamber Decision Refusing to Subpoena the President of Sierra Loene, SCSL-04-16-T-688, 11 September 2006 ———, Decision on Fofana Submissions Regarding Proposed Expert Witness Daniel J. Hoffman PhD, SCSL-04-14-T, 7 July 2006 ———, Decision on Motion by the First and Second Accused for leave to Appeal the Chamber’s Decision on their Motions for the Issuance of a Subpoena to the President of the Republic of Sierra Leone, SCSL-04-14-T, 28 June 2006 ———, Decision on Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses SCSL-04-14-T, 20 June 2006 ———, Decision on Prosecution Appeal against Confidential Decision on Defence Application Concerning Witness TF2-218, SCSL-04-14-AR73(B), 26 May 2006 ———, Decision on Prosecution Request for Order to Defence Pursuant to Rule 73ter(B) to Disclose Written Witness Statements, SCSL-04-16, 21 February 2006 ———, Decision on Prosecution’s Request to Admit into Evidence Certain Documents Pursuant to Rules 92bis and 89(C), SCSL-04-14-447, 14 July 2005 ———, Decision on Prosecution Request for Leave to Call Additional Witnesses and for Orders for Protective Measures, SCSL-2003-08-PT, 21 June 2005 ———, Decision on Prosecution Application for Closed Session for Witness TF2-218, SCSL-04-14-T, 15 June 2005

366

Bibliography

———, Fofana Decision on Appeal Against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, SCSL-2004-14-AR73, 16 May 2005 ———, Fofana Appeal against Decision Refusing Bail, SCSL-04-14-AR65, 11 March 2005 ———, Ruling on Defence Oral Application to call OTP Investigators who took down in Writing Statements of Prosecution Witness TF2-021, SCSL-04-16, 7 December 2004 ———, Ruling on Motion for Modification of Protective Measures for Witnesses, SCSL-04-14-T-274, 18 November 2004 ———, Decision on Prosecution request for Leave to call Additional Expert Witness Dr William Haglund, 1 October 2004 ———, Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa SCSL-04-14-T, 2 August 2004 ———, Decision on Disclosure of Witness Statements and Cross-Examination, SCSL04-14-PT, 16 July 2004 ———, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, SCSL-04-14-T, 23 May 2003 Sesay et al., Judgement, SCSL-04-15-T, 2 March 2009 ———, Written Reasoned Decision on Motion for Issuance of a Subpoena to H.E. DR. Ahmad Tejan Kabbah, Former President of the Republic of Sierra Leone, SCSL-0415-T, 30 June 2008 ———, Decision on Sessay motion to request the Trial Chamber to hear evidence concerning the prosecutor’s witness management unit and its payments to witnesses, SCSL-04-15-T, 25 June 2008 ———, Motion to request the Trial Chamber to hear evidence concerning the prosecution’s witness management unit and its payment to witnesses, SCSL-04-15-T, 5 June 2008 ———, Motion to request the Trial Chamber to hear Evidence concerning the Prosecution’s Witness Management Unit and its Payment to Witnesses, SCSL-0415-T, 30 May 2008 ———, Decision on Prosecution Appeal of Decision on the Sesay Defence Motion Requesting the Lifting of Protective Measures in Respect of Certain Prosecution Witnesses, SCSL-04-15-T, 23 May 2008 ———, Decision on Sesay Defence Motion and Three Sesay Defence Applications to Admit 23 Witness Statements under Rule 92bis, SCSL-04-15-T, 15 May 2008 ———, Decision on defence Application for the Admission of the Witness Statement of DIS-129 under Rule 92bis or in the Alternative under Rule 92 ter, SCSL-04-15-T, 12 March 2008 ———, Transcript, Trial Chamber I, SCSL-2004-15-T, 20 June 2007

Bibliography

367

———, Decision on Sesay Defence Motion to Direct the Prosecutor to Investigate the Matter of False Testimony by Witness TF1-366, SCSL-04-15-T, 25 July 2006 ———, Decision on prosecution Notice under Rule 92bis and 89 to Admit the Statement of TF1-150, SCSL-04-15-T, 20 July 2006 ———, Decision on the Defence Motion for the Exclusion of Certain Portions of Supplemental Statements of Witness TF1-117, SCSL-2004-15-T, 27 February 2006 ———, Ruling on Gbao Application to Exclude Evidence of Prosecution Witness Mr. Koker”, SCSL-04-15-T, 23 May 2005 ———, Decision on Sesay Motion Seeking Disclosure of the relationship Between Governmental Agencies of the United States of America and of the Office of the Prosecutor, SCSL-04-15-T-363, 2 May 2005 ———, Ruling on the Request to Re-Open the Cross-Examination of Witness TF1-012, SCSL-04-15-T, 5 April 2005 ———, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, SCSL-04-15-T, 5 July 2004 ———, Order to the Prosecution for renewed Motion for Protective Measures, SCSL04-15-PT, 2 April 2004 Taylor, Judgement SCSL-03-01-T, 18 May 2012 ———, Decision on Public with Confidential Annexes A to E & Public Annes F Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone and Public Confidential Annexes A & B Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone, SCSL-031-T, 25 Febraury 2011 ———, Decision on Public with Confidential Annexes A–J and Public Annexes K–O Defence Motion Requesting an Investigation into Contempt of Court by the Office of the Prosecutor and its Investigators, SCSL-03-01-T-1118, 12 November 2010 ———, Decision on Prosecution Motion for the Issuance of a Subpoena to Noami Campbell, SCSL-03-1-T, 30 June 2010 ———, Decision on the Defence Motion for the Disclosure of the Identity of a Confidential ‘Source’’ Raised During Cross-Examination of TF1-355, SCSL-03-1-T, 6 March 2009 ———, Decision on Confidential Defence Application for Disclosure of Documents in the Custody of the Prosecution pursuant to Rule 66 and Rule 68, SCSL-03-1-T, 18 February 2009 ———, Decision on ‘Prosecution Notice of Appeal and Submissions Concerning the Decision Regarding the Tender of Documents’, SCSL-03-01-AR73-721, 6 February 2009 ———, Decision on Public with Confidential Annexes C to E Prosecution Motion for Admission of Prior Trial Transcripts of Witnesses TF1-021 and TF1-083 pursuant to Rule 92Quater, SCSL-03-1-T, 5 February 2009

368

Bibliography

———, Decision on prosecution Appeal Regarding the Decision concerning protective measures of witness TFI-062, SCSL-03-1-PT, 13 November 2008 ———, Decision on Kallon motion pursuant to Rule 75(G) to modify Kallon and Gbao Defence protective measures decisions of 19 March 2007 and 1 March 2007 for access to closed session Defence witness testimony and limited disclosure of Defence witness names and related exculpatory material, SCSL-03-01-T-649, 28 October 2008 ———, Decision on Confidential Prosecution Motion for Additional Protective Measures for Witness TF1-395, SCSL-03-1-T, 3 October 2008 ———, Decision on Public Prosecution Motion to Allow Witness TF1-303 To give Testimony by Video-Link, SCSL-03-1-T, 18 September 2008 ———, Decision on Prosecution Notice under Rule 92 bis for the Admission on Evidence related to inter alia Kenema District and on Prosecution Notice under Rule 92 bis for the Admission of the Prior Testimony of TF1-036 into Evidence, SCSL03-1-T, 15 July 2008 ———, Decision on Defence Application to Exclude the Evidence of Proposed Prosecution Expert Witness Corinne Dufka or, in the Alternative, to Limit its Scope and on Urgent Prosecution Request for Decision, SCSL-03-1-T, 19 June 2008 ———, Decision on Confidential Prosecution Motions SCSL-03-01-T-372 and SCSL-0301-T-385 for the Testimonies of Witnesses to be held in Closed Session, SCSL-0301-T-427, 26 February 2008 ———, Decision on Prosecution Motion To Allow Witnesses To Give Testimony By Video-Link, SCSL-03-1-PT, 30 March 2007 ———, Decision on Confidential Urgent Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure and on Public Urgent Prosecution Motion for Leave to Substitute a Supplemented Witness List as Annex A(4) of the Confidential Urgent Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure filed on 8 March 2007 and on Public Urgent Prosecution Request for Interim Measures, SCSL-03-!-PT, 26 March 2007 ———, Decision on Defence Motion to Lift the Redactions of Identifying Information of Fifteen Core Witnesses, SCSL-03-!-PT, 21 March 2007 ———, Decision on Confidential Prosecution Motion For Immediate Protective Measures for Witnesses and for Non-Public Disclosure and Urgent Request for Interim Measures and on Confidential Prosecution Motion for leave to Substitute a Corrected and supplemented list as Annex A of the Confidential Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure and Urgent Request for Interim Measures, SCSL-03-1-PT, 5 May 2006 ———, Decision on Confidential Urgent Motion; Norman et al Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, SCSL04-14-T, 8 June 2004

Bibliography

369

2 Books Altman, A. and Wellman, C. H., A Liberal Theory of International Justice (Oxford University Press, 2009) Appiah, K. A., Cosmopolitanism: Ethics in a World of Strangers (W. W. Norton & Company, 2006) Archibugi, D., The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton University Press, 2008) Beardsworth, R., Cosmopolitanism and International Relations Theory (Polity Press, 2011) Beigbeder, Y., Judging War Criminals: The politics of International Justice (Palgrave, 1999) Brock, G., Global Justice: A Cosmopolitan Account (Oxford University Press, 2009) Brock, G. & Brighouse, H. (eds.), The political Philosophy of Cosmopolitanism (Cambridge University Press, 2005) Cabrera, L., Political Theory of Global justice: A Cosmopolitan case for the World State (Routledge, 2004) Caney, S., Justice Beyond Borders—A global Political Theory (Oxford University Press, 2005) Cassese, A., International Criminal Law (2nd ed. Oxford University Press, 2008) ———, International Criminal Law (Oxford University Press, 2003) Clarke, K. M., Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009) Combs, N. A., Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press, 2010) Cryer, R., Hervey, T. Sokhi-Bulley, B., Research Methodologies in EU and International Law (Hart Publishing, 2011) Cryer, R., Friman, H., Robinson, D. & Wilmshurst, E., An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2010) Drumbl, M., Atrocity, Punishment and International Law (Cambridge University Press, 2007) Findlay, M. and Henham, R., Beyond Punishment in International Criminal Justice (Palgrave Macmillan, 2010) Goldsmith, J. L. and Posner, E. A., The Limits of International Law (Oxford University Press, 2005) Griffiths, M. Roach, S. & Solomon, S., Fifty Key Thinkers in International Relations (Routledge, 2009) Hart, H. L. A., The Concept of Law (Oxford University Press, 1994) Heater, D., World Citizenship and Government: Cosmopolitan Ideas in the History of Western Political Thought (Palgrave Macmillan, 1996) Held, D., Cosmopolitanism: Ideals and Realities (Polity, 2010)

370

Bibliography

———, Democracy and the Global Order: From the Morden State to Cosmopolitan governance (Polity Press, 1995) ———, Global Covenant: The Social Democratic Alternative to the Washington Consensus (Cambridge Polity, 2004) ———, Models of Democracy (Polity Press, 2006) Held, D. and McGrew, A. (eds.), Global Transformations: Politics, Economics and Culture (Cambridge Polity, 1999) Hirsh, D., Law against Genocide: Cosmopolitan Trials (Glasshouse, 2003) Holy Bible New International Version (Zondervan Publishers, 1978) Jones, J. R. W. D. & Powles, S., International Criminal Practice: The ICTY, ICTR, ICC, SCSL, East Timor Special Panel for Serious Crimes, War Crimes Prosection in Kosovo (Third Edition, Oxford University Press, 2003) Kadden, B. and Kadden, B., Teaching Mitzvot Concepts, Values, and Activities (Association of Research & Enlig, 2003) Kant, I., The Morality of Law by Lon Fuller (Universal Law Publishers, 1969, Reprint, 2006) Keenan, J. B. & Brendan Francis Brown, B.F., Crimes Against International Law (Public Affairs Press, 1950) Kelsall, T., Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) Khan, K. and Dixon, R., Archbold International criminal Courts: Practice, Procedure & Evidence (Thomson, Sweet & Maxwell, 2005) Klamberg, M., Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (Martinus Nijhoff Publishers, 2013) Moellendorf, D., Cosmopolitan Justice (Westview Press, 2002) Morgenthau, H. and Thompson, K., Politics Among Nations, 6th edition (New York: McGraw-Hill, 1985) Mousourakis, G., The Legal History of Rome (Routledge Taylor & Francis Group, 2007) ———, The Historical and Institutional Context of Roman Law (Ashgate, 2003) Nussbaum, M., Cultivating Humanity (Harvard University Press, 1997) Penner, J.E., Mozley & Whiteley’s Law Dictionary (Butterworths 12th edition, 2001) Pierik, R. and Werner, W., Cosmopolitanism in Contex: Perspectives from International Law and Political Theory (Cambridge University Press, 2010) Prokhovnik, R., Sovereignty: History and Theory (Imprint Academic, 2008) Ralph, J., Defending the Society of States: why America Opposes the ICC and its vision of World Society (Oxford University Press, 2007) Ramsbotham, O. Woodhouse, T. and Miall, H., Contemporary Conflict Resolution (Polity Press, 2011) Riddell, A. & Plant, B., Evidence Before the International Court of Justice (British Institute of International and Comparative Law, 2009)

Bibliography

371

Roach, S. (eds.), Governance, Order and the International Criminal Court (Oxford University Press, 2009) Robinson, O. F., Penal Practice and Penal Policy in Ancient Rome (Routledge Taylor & Francis Group, 2007) ———, The Criminal Law of Ancient Rome (Duckworth, 1995) Roper, B., The History of Democracy (Pluto Press, 2012) ———, Prosperity for All? Economic, Social and Political Change in New Zealand since 1935 (Thomson, 2005) Sadat, L. N., The International Criminal Court and the Transformation of International Law: Justice for the New Millenium (Transnational Publishers, 2002) Safferling, C. J. M., Towards an International Criminal Procedure (Oxford University Press, 2001) Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010) ———, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, 2006) ———, An Introduction to the International Criminal Court (Cambridge University Press, 2001) Scharf, M. P., Balkan Justice The Story Behind the First International War Crimes Trial Since Nuremberg (Carolina Academic Press, 1997) Sluiter, G., International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) Tamanaha, B. Z., On the Rule of Law: History, Politics Theory (Cambridge University Press, 2004) ———, A General Jurisprudence of Law and Society (Oxford University Press, 2001) Tan, K. C., Justice Without Borders: Cosmopolitanism Nationalism and Patriotism (Cambridge University Press, 2004) Tapper, C. C. & Tapper on Evidence, (8th Ed, London: LexisNexis Butterworths, 1995) Ulrich, B., The Cosmopolitan Vision (Polity Press Cambridge, 2006)

3

Chapters in Books

Acquaviva, G. & Combs N. A. (eds.), ‘Trial Process’ in Goran Sluiter (eds.) International Criminal Procedure: Rules and Principles (Oxford University Press, 2013) pp. 489–878 Ambos, K., ‘Witness Proofing’ before the ICC: Neither legally Admissible nor Necessary’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 599–614 Beitz, C., ‘Cosmopolitan liberalism and the States System’ in C. Brown (eds.) Political Restructuring in Europe: Ethical Perspectives (Routledge, 1994) pp. 123–136

372

Bibliography

Behrens, H. J., “The Trial Proceedings” in Roy S. Lee (eds.) The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer Law International, 1999) Borer, T. A., ‘Truth Telling as a Peace-Building Activity: A Theoretical Overview’ in T. Borer (Ed.), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies (University of Notre Dame Press, 2006) pp. 1–57 Bitti, G., “Functions and Powers of the Trial Chamber” in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1199–1218 Brady, H., ‘Protective and Special Measures for Victims and Witnesses,’ in Roy S. Lee The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc., 2001) pp. 434–456 ———, ‘The System of Evidence in the Statute of the International Criminal Court’ in Flavia Lattanzi and William A. Schabas Edited, Essays on the Rome Statute of the International Criminal Court, (Vol. I Editrice il Sirente, 1999) pp. 279–302 Broomhall, B. and Kress, C., “Implementing Cooperation Duties Under the Rome Statute: A Comparative Synthesis” in Claus Kress, Bruce Broomhall, Flavia Lattanzi, Valeria Santori (eds.) The Rome Statute of the International Criminal Court and Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (Volume II, Editrice il Sirente, 2005) pp. 515–543 Caney, S., “Cosmopolitanism” in Duncan Bell (eds.) Ethics and World Politics (Oxford University Press, 2010) pp. 146–163 Ciampi, A., “Other forms of Cooperation,” in A. Cassesse, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, (vol. II, Oxford University Press, 2002) pp. 1705–1747 Davies, G. and Westcott, H., ‘Investigative Interviewing with Children: progress and Pitfalls’ in Anthony Heaton-Armstrong ed. Witness Testimony, Psychological, Investigative and Evidential Perspectives (Oxford University Press, 2006) DeGuzman, M. & Schabas, W. A., ‘Initiation of Investigations and Selection of Cases’ in Goran Sluiter (eds.) International Criminal Procedure: Rules and Principles (Oxford University Press, 2013) pp. 131–170 De Smet, S., ‘A structural analysis of the role of the Pre-Trial Chamber in the fact-finding process of the ICC,’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 405–440 Devetak, R., ‘Post-structuralism’ in in Scott Burchill & Andrew Linklater (eds.) Theories of International Relations (Palgrave Macmillan, 2009) pp. 183–211 Donat-Cattin, D., ‘Article 68 Protection of the Victims and Witnesses and their Participation in the Proccedings’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck, 2008) pp. 1275–1300

Bibliography

373

Donnelly, J., ‘Realism’ in Scott Burchill & Andrew Linklater (eds.) Theories of International Relations (Palgrave Macmillan, 2009) pp. 31–56 Dubuisson, M., Anne-Aurore Bertrand, A. A. and Schauder, N. ‘Contribution of the Registry to greater respect for the Principles of fairness and Expeditious Proceedings before the International Criminal Court’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 565–584 Eckert, A. E., ‘The Cosmopolitan Test: Universal Morality and the Challenge of the Darfur Genocide’, in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press, 2009) pp. 205–225 Edkins, J., ‘Poststructuralism’ in Martin Griffiths (eds.) International Relations Theory for the Twenty-First Century: An introduction (Routledge, 2007) pp. 88–98 Elman, C., ‘Realism’ in Martin Griffiths International Relations Theory for the TwentyFirst Century: An introduction (Routledge, 2007) pp. 11–20 Fabricio Guariglia, F., ‘The selection of cases by the office of the Prosecutor of the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 209–218 Fernandez de Gurmendi, S. A., ‘Victims and Witnesses’ in Roy S. Lee (eds.) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, 2001) pp. 427–491 ———, ‘Elaboration of the Rules of Procedure and Evidence’, in Roy S. Lee (eds.) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, 2001) pp. 235–257 Ford, J., ‘Country Study III: Kenya’, in Max du Plessis & Jolyon Ford (eds.) Unable or Unwilling? 
Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries (Institute for Security Studies
, 2008) 57–78 Franceschet, A., ‘Four Cosmopolitan Projects: The International Criminal Court in Context’ in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press, 2009) pp. 179–204 Francis, L. P. and Francis, J. G., ‘International Criminal Courts, the Rule of Law, and the Prevention of Harm: Building Justice in Times of Injustice’, in Larry May and Zachary Hoskins, International Criminal Law and Philosophy (Cambridge University Press, 2010) 58–71 Friman, H., ‘Offences and Misconduct against the Court’ in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc., 2001) pp. 605–636 Fourmy, O., ‘Powers of the Pre-Trial Chambers’, in A. Cassesse, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (Vol. II Oxford University Press, 2002) pp. 1207–1230

374

Bibliography

Gallmetzer, R., ‘The Trial Chamber’s discretionary power to devise the proceedings before it and its exercise in the trial of Thomas Lubanga Dyilo’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 520–521 Gray, K. R., ‘Evidence before the ICC’, in Dominic McGoldrick Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing, 2004) pp. 287–313 Habermas, J., ‘Kant’s Idea of Perpetual Peace: at Two Hundred Years Historical Remove’ in Ciaran Cronin and Pablo De Greiff (eds.) The Inclusion of the Other (MIT Press Cambridge, 1998) 165–201 Hala, V., ‘Morality and Legality: The Political Significance of their Relationship’, in Miloslav Bednár eds. Human Dignity: Values and Justice Czech Philosophical Studies III (Council for Research in values and Philosophy Book Series IV, IVA. Volume 18, 1999) Haidt, J. and Kesebir, S., ‘Morality’, in S.T. Fiske & D. Gilbert (eds.) Handbook of Social Psychology (John Wiley and Sons, 5th edition Volume II, 2010) Harris, K., ‘Offences against the administration of justice,’ in Otto Trifferer (eds.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 917–923 Hayden, P., ‘Political Evil, Cosmopolitan Realism, and the Normative Ambivalence of the International Criminal Court’ in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press, 2009) pp. 57–177 Heinch, R., ‘How to achieve fair and expeditious trial proceedings before the ICC: Is it time for more judge-dominated approach’ in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 479–499 Held, D., ‘Cultural diversity, cosmopolitan principles and the limits of sovereign’, in David Held and Henrietta Moore Held (eds.) Cultural politics in a global age: uncertainty, solidarity and innovation (Oneworld Oxford, 2008) pp. 157–164 ———, ‘Principles of Cosmopolitan Order’, in G. Brock and Brighouse, H. (eds.) The Political Philosophy of Cosmopolitanism (Cambridge University Press, 2005) ———, ‘From Executive to Cosmopolitan Multilateralism’, in David Held (eds.) Taming Globalization: Frontiers of Governance (Polity Press, 2003) Kant, I., ‘Toward Perpetual Peace,’ in Gregor MJ (trans.) Practical Philosophy-Cambridge Edition of the Works of Immanuel Kant (Cambridge University Press, 1999) Kaul, H. P., ‘The International Criminal Court—Its relationship to domestic jurisdictions’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 31–38 Klip, A., ‘Commentary on Decisions Relating to the false Testimony of Dragan Opacic’, in André Klip and Goran Sluiter, Annotated Leading Cases of International criminal

Bibliography

375

Tribunals, Vol.1: the International Criminal tribunal for the Former Yugoslavia 1993– 1998 (Intersentia, 1999) Kress, C., ‘Witnesses in Proceedings Before the International Criminal Court’, in Horst Fischer, Claus Kress & Sascha Rolf Luder (eds.), International and National Prosecution of Crimes under International Law: Current Developments (Verlag Arno Spitz GMBH, 2001) pp. 309–383 Kress, C., Prost, K. & Wilkitzki, P., ‘Part 9: International Cooperation and Judicial Assistance, Preliminary Remarks’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1503–1512 Kress, C. & Prost, K., ‘Article 93 Other Forms of Cooperation”, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1569–1588 Kriegman, O., ‘Dawn of the Cosmopolitan The Hope of a Global Citizens Movement’, in Orion Kriegman and Paul Raskin Frontiers of a Great Transition (Tellus Institute, 2006) Kurth, M. E., ‘Anonymous Witnesses before the International Criminal Court: Due Process in dire Straits’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 615–634 Lee, R. S., ‘States’ Responses: Issues and Solutions’, in Roy S. Lee (eds.) States’ Responses to Issues arising from the ICC Statute: Constitutional, Sovereignty, Judicial Cooperation and Criminal Law (Transnational Publishers, 2005) pp. 1–46 Linklater, A., ‘Marx and Marxism’ in Scott Burchill & Andrew Linklater (eds.) Theories of International Relations (Palgrave Macmillan, 2009) pp. 111–135 May, R., ‘The Collection and Admissibility of Evidence and the Rights of the Accused’ in Mark Lattimer & Philippe Sands Justice for Crimes Against Humanity (Hart Publishing, 2003) Mieijer, E. E., ‘The Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organisation, and Procedure of an Internationalised National Tribunal’ in Romano Cesare (eds.) Internationalised Criminal Courts Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press, 2004) pp. 207–231 Murphy, C., ‘Political reconciliation and international criminal trials’, in Larry May and Zachary Hoskins, International Criminal Law and Philosophy (Cambridge University Press, 2010) Nussbaum, M., ‘Kant and Cosmopolitanism’ in Bohman and Lutz-Bachmann (eds.) Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, 1997) ———, ‘Patriotism and Cosmopolitanism’ in Joshua Cohen (eds.) For Love of Country: Debating the limits of Patriotism (Beacon Press, 1996)

376

Bibliography

Orie, A., “Accusatorial v. Inquisitorial Approach in International Criminal Proceedings prior to the Establishment of the ICC and in the Proceedings before the ICC”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary (Vol. II Oxford University Press, 2002) pp. 1439–1495 Piragoff, D. K., ‘Article 69, Evidence’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1301–1336 ———, ‘Article 70 Offences against the administration of justice’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck, 2008) pp. 1337–1345 Pogge, T., ‘Cosmopolitanism’, in R. G. Frey and Christopher Heath Wellman (eds.) A Companion to Applied Ethics (Oxford Blackwell, 2008) 312–331 ———, ‘Cosmopolitanism and Sovereignty’ in C. Brown eds; Political Restructuring in Europe; Ethical Perspectives (Routlege, 1994b) 89–122 Ralph, J., ‘Anarchy is What Criminal Lawyers and other Actors Make of it: International Criminal Justice as an Institution and World Society’ in Steven Roach Governance, Order and the International Criminal Court (Oxford University Press, 2009) 133–153 Rastan, R., ‘The Responsibility to Enforce—Connecting Justice with Unity’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 163–182 Roach, S., ‘Introduction: Global Governance In Context’, in Steven Roach (eds.) Governance, Order and the International Criminal Court (Oxford University Press, 2009) Rupert, M., ‘Marxism’ in Martin Griffiths (eds.) International Relations Theory for the Twenty-First Century: An introduction (Routledge, 2007) pp. 35–46 Schabas, W., ‘Article 67: Rights of the Accused’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C. H. Beck, 2008) pp. 1247–1274 Scheffer, D., ‘A review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court regarding the Disclosure of Evidence’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 585–597 Sluiter, G., ‘Appearance of Witnesses and unavailability of Subpoena powers for the Court’ in Roberto Bellelli International Criminal Justice: Law and Practice from the Rome Statute to its Review (Ashgate, 2010) pp. 459–472 ———, “State Cooperation with the International Criminal Court” in Rodrigo YepesEnriquez, Lisa Tabassi Treaty Enforcement and International Cooperation in Criminal Matters: With special reference to the Chemical Weapons Convention (Cambridge University Press, 2002) pp. 127–138

Bibliography

377

Struett, M. J., ‘The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court’, in Steven Roach, Governance, Order and the International Criminal Court (Oxford University Press, 2009) pp. 107–132 Terrier, F., ‘Powers of the Trial Chamber’, in A. Cassesse, P. Gaeta and J. R. W. D. Jones (eds.) The Rome Statute of the International Criminal Court: A Commentary (vol. II, Oxford University Press, 2002) pp. 1259–1276 ———, ‘The Procedure before the Trial Chamber,’ in A. Cassese, P. Gaeta and J. R. W. D. Jones The Rome Statute of the International Criminal Court: A Commentary (Vol. II Oxford University Press, 2002) pp. 1277–1318 Trifferer, O., ‘Article 71, Sanctions for misconduct before the Court,’ in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1347–1360 ———, ‘Sanctions for misconduct before the Court,’ in Otto Trifferer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Baden-Baden: Nomos, 1999) pp. 925–935 Vasiliev, S., ‘Artilce 63(3) and personal interests of victims in the emerging practice of the ICC’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 634–690 Zahar, A., ‘The Problem of false Testimony at the International Criminal Tribunal for Rwanda,’ in Andre Klip and Goran Sluiter eds., Annotated Leading Cases of International criminal Tribunals, Vol. 25: the International Criminal tribunal for the Former Yugoslavia 2006–2007 (Intersentia, 2010)

4 Journals Acquaviva, G., ‘New Paths in International Criminal Justice? The Internal Rules of the Cambodian Extraordinary Chambers’ (2008) Journal of International Criminal Justice 129 Akhavan, P., ‘Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) Human Rights Quarterly 737 Aldana-Pindell, R., ‘In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes’ (2002) Vanderbilt Journal of Transnational Law 1399 Al-Maini, D., ‘Cosmopolitanism, Stoicism and Liberalism’ (2007) Philosophy Culture and Traditions 145 Almqvist, J., ‘The Impact of Cultural Diversity on International Criminal Proceedings’ (2006) Journal of International Criminal Justice 745

378

Bibliography

Ambos, K., ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) Oxford Journal of Legal Studies 293 ———, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) International Criminal Law Review 115 ———, ‘Witness Proofing’ before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman’ (2008) Leiden Journal of International Law 911 ———, ‘The Right of Non-Self-Incrimination of Witnesses Before the ICC’, (2002) Leiden Journal of International Law 155 Aptel, C., ‘Some Innovations in the Statute of the Special Tribunal for Lebanon’, (2007) Journal of International Criminal Justice 1107 Archibugi, D., ‘Cosmopolitan Democracy and its Critics: A Review’, (2004) European Journal of International Relations 437 ———, ‘Demos and Cosmopolis’, (2002) New Left Review 24 Bassin, A. S., ‘Dead Men Tell no Tales’: Rule 92bis—How the Ad Hoc International Criminal Tribunals Unnecessarily Silence the Dead’ (2006) New York University Law Review 1766 Benhabib, S., ‘Carl Schmitt’s Critique of Kant: Sovereignty and International Law’ (2012) Political Theory at 688 Beresford, S., ‘Child witnesses and the international criminal justice system: does the International Criminal Court protect the most vulnerable?’ (2005) Journal of International Criminal Justice 721 Berman, E. A., ‘In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals’, (2005) New York University Law Review 241 Berry, C., ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’ (2008) Journal of Law, Politics and Societies 15 Boas, G., ‘Developments in the Law of Procedure and Evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court’, (2001) Criminal Law Forum 167 Bohlander, M., ‘International Criminal Tribunals and Their Power to punish Contempt and False Testimony’, (2001) Criminal Law Forum 91 ———, ‘International Criminal Defence Ethcs: the law of Professional Conduct for defence Counsel appearing before International Criminal Tribunals’, (2000) San Diego International Law Journal, 75 Bostian, I. L., ‘Cultural Relativism in International War Crimes Prosecutions: The International Criminal Tribunal for Rwnada’, (2005) ILSA Journal of International and Comparative Law 1

Bibliography

379

Brady, H. & Goy, B., ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2008) Journal of International Criminal Justice 569 Bronislaw, S. and Urry, J., ‘Visuality, ‘Mobility and the Cosmopolitan Inhabiting the World from Afar’, (2006) The British Journal of Sociology 113 Burkey, F. E. F., ‘The Prosecutor v. Aleksovski, 30 May 2001, Judgment on Appeal by Anto Nobilo against Finding of Contempt: A critical Analysis of the ICTY Appeals Chamber’s Abandonment of Witness Protection Measures’ (2004) Washington University Law Quarterly 297 Burnett, M. J., ‘Remembering Justice in Rwanda: Locating Gender in the Judicial Construction of Memory’ (2005) Seattle Journal for Social Justice 757 Byron, D. C. M., ‘Looking at Legacy and Looking Back on the Legacy Symposium’, (2008) New England Journal of International and Comparative Law 319 Carlson, D. G., ‘Hart avec Kant: On the Inseparability of Law and Morality’, (2008) Social Science Research Network Carpenter, M. M., ‘Bare Justice: A Feminist Theory of Justice and its Potential Application to Crimes of Sexual Violence in post-genocide Rwanda’, (2008) Creighton Law Review 595 Carroll, C. M., ‘An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National Justice System in dealing with Mass Atrocities 1994’ (2000) Boston University International Law Journal 163 Cassese, A., ‘Reflections on International Criminal Justice’, (1998) Modern Law Review 1 ———, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’ (1997) European Human Rights Law Review 329 Chenault, S., ‘And Since Akayesu? The Development of ICTR Jurisprudence on Gender Crimes: A Comparison of Akayesu and Muhimana’, (2008) New England Journal of International and Comparative Law 221 Chinkin, C. M., ‘Due Process and Witness Anonymity’, (1997) The American Journal of International Law 75 Coan, C. B., ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia’ (2000) North Carolina Journal of International Law and Commercial Regulation 183 Cockayne, J., ‘The Special Tribunal for Lebanon-A Cripple from Birth?’ (2007) Journal of International Criminal Justice 1061 ———, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’, (2005) Fordham International Law Journal 616 Cogan, J. K., ‘International Criminal Courts and Fair Trials: Difficulties and prospects’ (2002) Yale Journal of International Law 111 Cohen, D., “Hybrid’ Justice in East Timor, Sierra Leone and Cambodia: ‘Lessons Learned’ and Prospects for the Future’ (2007) Stanford Journal of International Law 1 Coleman, J., ‘Constraints on the Criteria of Legality’, (2000) Legal Theory 171

380

Bibliography

Combs, N. A., ‘Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials’ (2009) UCLA Journal of International law & Foreign Affairs 235 ———, ‘Copping a Plea to Genocide: The Plea Bargaining of International Crimes’, (2002) University of Pennsylvania Law Review 1 Damaska, M., ‘What is the point of International Criminal Justice?’ (2008) ChicagoKent Law Review 329 Dana, S., ‘Beyond Retroactivity to Realizing Justice: A Theory on the Principle of Legality in International Criminal Law Sentencing’, (2009) Journal of Criminal Law and Criminology 857 Davis, M. M., ‘Fair Trial Rights: A Case Study at the ICTR’, (2008) New England Journal of International and Comparative Law 267 DeGuzman, M. M., ‘Choosing to Prosecute Expressive Selection at the International Criminal Court’ (2012) Michigan Journal of International 265 De los Reyes, C., ‘Revisiting Disclosure Obligations at the ICTR and Its Implications for the Rights of the Accused’ (2005) Chinese Journal of International Law 583 Defrancia, C., ‘Due Process in International Criminal Courts: Why Procedure Matters’, (2001) Virginia Law Review 1381 Del Ponte, C., ‘Investigation and Prosecution of Large-Scale Crimes at the International Level: The Experience of the ICTY’ (2006) Journal of International Criminal Justice 539 Delanty, G., ‘The cosmopolitan imagination: critical cosmopolitanism and social theory’ (2006) The British Journal of Sociology 25 Delmas-Marty, M., ‘The Contribution of Comparative Law to a Pluralist Conception of Criminal Law’ (2003) Journal of International Criminal Justice 13 Dickinson, H. T., ‘The Eighteenth-Century Debate on the Sovereignty of Parliament’
 (1976) Transactions of the Royal Historical Society 189 Dickinson, L. A., ‘The Promise of Hybrid Courts’ (2003) American Journal of Inter­ national Law 295 Dieng, A., ‘Capacity-Building Efforts of the ICTR: A Different Kind of Legacy’ (2011) Northwestern Journal of International Human Rights 403 ———, ‘Other Preparations for the Establishment of the Court: International Criminal Justice: From Paper to Practice, A Contribution from the International Criminal Tribunal for Rwanda to the Establishment of the International Criminal Court’ (2002) Fordham International Law Journal 688 DiPardo, E. M., ‘Caught in a Web of lies: use of Prior Inconsistent Statements to Impeach Witnesses before the ICTY’ (2008) Boston College International and Comparative Law Review 277 Dobson, A., ‘Thick Cosmopolitanism’, (2006) Political Studies, 165 Du Plessis, M., ‘South Africa’s implementation of the ICC Statute: an African Example’, (2007) Journal of International Criminal Justice 469

Bibliography

381

Eaton, S., ‘Sierra Leone: The Proving Ground for Prosecuting Rape As a War Crime’, (2004) Georgetown Journal of International Law 873 Ellis, M. S., ‘International Justice and the Rule of Law: Strengthen the ICC through domestic prosecutions’ (2009) Hague Journal on the Rule of Law 79 Fabian, K. L., ‘Proof and Consequences: An Analysis of the Tadic & Akayesu Trials’ (2000) DePaul Law Review 981 Fairlie M. A., ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) California Western International Law Journal 47 Feldham, N., ‘Cosmopolitan Law?’ (2007) The Yale Law Journal 1024 Gallimore, T., ‘The Legacy of The International Criminal Tribunal for Rwanda (ICTR) and its Contribution to Reconciliation in Rwanda’, (2008) New England Journal of International and Comparative Law 239 Galvin, R. J., ‘The ICC Prosecutor, Collateral Damage, and NGOs: Evaluating the Risk of a Politicized Prosecution’ (2005) University of Miami International and Comparative Law Review 1 Gaynor, F. and Morris, L. K., ‘M. Cherif Bassiouni, The Legislative History of the International Criminal Court’ (2008) Journal of International Criminal Justice 815 Goldsmith, J., ‘Liberal Democracy and Cosmopolitan Duty’, (2003) Stanford Law Review 1667 Goldston, J. A., ‘The Rule of Law at Home and Abroad’, (2009) Hague Journal on the Rule of Law 38 Goldstone, R., ‘A View from the Prosecution’, (2004) Journal of International Criminal Justice 380 Gordon, G. S., ‘Toward an International Criminal Procedure: Due Process Aspirations and Limitations’ (2007) Columbia Journal of Transnational Law 635 ———, ‘Towards an International Criminal procedure: due process, aspirations and limitations,’ (2006) Berkeley Electronic Press 1 Greenwalt, A., ‘Justice without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) NYU Journal of International Law and Politics 583 Groome, D., ‘Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility’ (2008) Fordham International Law Journal 911 Gustafson, K. and Janisiewicz, N., ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2008) Journal of International Criminal Justice 1091 Haidt, J. and Bjorklund, F., ‘Social Intuitionists Answer Six Questions about Moral Psychology’ (2006) Social Science Research Network Hansen-Young, T., ‘Defining Rape: A Means to Achieve Justice in the Special Court for Sierra Leone’, (2005) Chicago Journal of International Law 479 Harel, A., ‘Why only the State may inflict Criminal Sanctions: The Case Against privately inflicted Sanctions’ (2008) Legal Theory 113

382

Bibliography

Harmon, M. B. and Gaynor, F., ‘Prosecuting massive crimes with primitive tools: three difficulties encountered by prosecutors in international criminal proceedings’, (2004) Journal of International Criminal Justice 403 Hayden, R. M., ‘Biased ‘Justice’: Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia’, (1999) Cleveland State Law Review 549 Held, D., ‘From the American Century to a Cosmopolitan Order” (2011) Social Europe Journal ———, ‘Democracy: from city-states to a cosmopolitan order?’ (1992) Political Studies 10 Highet, K., ‘Evidence, The Court, and The Nicaragua Case’, (1987) American Journal of International Law 1 Hoefgen A. M., ‘There will be no justice unless women are part of the justice’: Rape in Bosnia, The ICTY and ‘Gender Sensitive’ Prosecution’, (1999) Wisconsin Women’s Law Journal 155 Horn, R. Simon Charters & Saleem Vahidy, ‘Witnesses in the special court for Sierra Leone: The Importance of the Witness-Lawyer Relationship,’ (2009) International Journal of Law, Crime and Justice 25 ———, ‘Testifying in an International War Crimes Tribunal: The Experience of Witnesses in the Special Court for Sierra Leone’, (2009) International Journal of Transitional Justice 135 Howland, T. and Calathes, W., ‘The UN’s International Criminal Tribunal is it justice or Jingoism for Rwanda? A call for Transformation’, (1998) Virginia Journal of International Law 135 Husketh, E., ‘Pole Pole: Hastening Justice at UNICTR’, (2005) Northwestern University Journal of International Human Rights 1 Ironside, P., ‘Rwandan Gacaca: Seeking Alternative means to Justice, Peace and Reconciliation’, (2002) New York International Law Review 31 Ivkovic, S. K., ‘Justice by the International Criminal Tribunal for the Former Yugoslavia’ (2001) Stanford Journal of International Law 255 Jalloh, C., ‘Regionalizing International Criminal Law?’ (2009) International Criminal Law Review 445 Jones, J. R. W. D., ‘The Gamekeeper-Turned-Poacher’s Tale’, (2004) Journal of Inter­na­ tional Criminal Justice 486 Kamatali, J. M., ‘ From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans’, (2005) New England Journal of International and Comparative Law 89 Karton, J., ‘Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony’, (2008) Vanderbilt Journal of Transnational Law 1

Bibliography

383

Keller, A. N., ‘Punishment for Violations of International Criminal Law: An analysis of sentencing at the ICTY and ICTR’ (2001) Indiana International and Comparative Law Review 53 Kress, C., ‘The procedural law of the International Criminal Court in outline: anatomy of a unique compromise’ (2003) Journal of International Criminal Justice 603 Kleingeld, P. & Brown, E., ‘Cosmopolitanism’ (2011) Stanford Encyclopaedia of Philo­ sophy 1 Klip, A., ‘Witnesses before the International Criminal Tribunal for the Former Yugoslavia’ (1996) Revue Internationale de Droit Pénal, 267 Knoops, G. A., ‘The Dichotomy Between Judicial Economy and Equality of Arms within International and Internationalised Criminal Trials: A Defense Perspective’ (2005) Fordham International Law Journal 1566 Koller, D., ‘The Faith of the International Criminal Lawyer’ (2008) 
New York University Journal of International Law and Politics 1019 Koskenniemi, M., ‘Between Impunity and Show Trials’, (2002) 6 Max Planck Yearbook of United Nations Law 1 Kovacs, P., ‘Developments and Limits in International Jurisprudence’, (2003) Denver Journal of International Law and Policy 461 Kuhner, T. K., ‘The Status of Victims in the Enforcement of International Criminal Law’, (2004) Oregon Review of International Law 95 Langer, M., ‘The Rise of managerial Judging in International Criminal Law’, (2005) American Journal of Comparative Law 835 Lehr-Lehnardt, R., ‘One Small Step for Women: Female-friendly Provisions in the Rome Statute of the ICC,’ ( 2002) Journal of Public Law, 317 Lejmi, M. A., ‘Prosecuting Cambodian Genocide Problems Caused by the Passage of Time since the Alleged Commission of Crimes’, (2006) Journal of International Criminal Justice 300 Leung, G., ‘A Critical History of Cosmopolitanism’ (2009) Law Culture and Humanities 370 Lijiang, Z., ‘Chinese Practice in Public International Law: 2007 (II)’ (2008) Chinese Journal of International Law 735 Lieflander, T. R., “The Lubanga Judgment of the ICC: More than just the First Step?” (2012) Cambridge Journal of International and Comparative Law 191 Magnarella, P. J., ‘Some Milestones and Achievements at the International Criminal tribunal for Rwanda: The 1998 Kambanda and Akayesu cases’, (1997) Florida Journal of International Law 517 Marx, J. P., ‘Intimidation of Defense Witnesses at the International Criminal Tribunals: Commentary and Suggested Legal Remedies’, (2007) Chicago Journal of International Law 675

384

Bibliography

May, R. & Wierda, M., ‘Trends in International Criminal Evidence: Nuremburg, Tokyo, The Hague, and Arusha’, (1999) Columbia Journal of Transnational Law 249 ———, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, (1999) Columbia Journal of Transnational Law 725 Mcclelland, G. A., ‘A Non-Adversary Approach to International Criminal Tribunals’ (2002) Suffolk Transnational Law Review 1 McDonald, G. K., ‘Reflections on the Contributions of the International Criminal Tribunal for the Former Yugoslavia’, (2001) Hastings International and Comparative Law Review 155 Mcgrew, A., ‘Cosmopolitanism and Global Justice’ (2004) Ritsumeikan Annual Review of International Studies 1 Mertus, J., ‘When Adding Women Matters: Women’s Participation in the International Criminal Tribunal for the Former Yugoslavia’ (2008) Seton Hall Law Review 1297 Mertus, J. A. and Bokovoy, M., ‘Correspondence’ (2006) American Journal of Inter­ national Law 626 Mikalsen, K. K., “Kant and Habermas on International Law” (2013) Ratio Juris. An International Journal of Jurisprudence and Philosophy of Law 302 Mills, M. M. V., ‘War Crimes in the 21st Century’ (1999) Hofstra Law and Policy Sympo­ sium 47 Moghalu, K. C., ‘International Humanitarian Law from Nuremberg to Rome: The Weighty Precedents of the International Criminal Tribunal for Rwanda’, (2002) Pace International Law Review 273 ———, ‘Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda’ (2002) Fletcher Forum of World Affairs 21 Mose, E., ‘The ICTR’s Completion Strategy—Challenges and Possible Solutions’ (2008) Journal of International Criminal Justice 667 ———, ‘The ICTR: Experiences and Challenges’ (2005) New England Journal of International and Comparative Law 1 ———, ‘Main Achievements of the ICTR’ (2005) Journal of International Criminal Justice 920 Muna, B., ‘The Rwanda Tribunal and its Relationship to National Trials in Rwanda’ (1998) American University International Law Review 1469 Mundis, D. A., ‘Current Developments at the Ad Hoc International Criminal Tribunals’ (2003) Journal of International Criminal Justice 197 Murphy, S. D., ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) American Journal of International Law 57 Nesbitt, M., ‘Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How Trials and Truth Commissions can Co-exist’ (2007) German Law Journal 977

Bibliography

385

Nollkaemper, A., ‘The Internationalized Rule of Law’ (2009) Hague Journal on the Rule of Law 74 Nsanzuwera, F. X., ‘The ICTR Contribution to National Reconciliation’, (2005) Journal of International Criminal Justice 944 Obote-Odora, A., ‘Rape and Sexual Violence in International Law: ICTR Contribution’ (2005) New England Journal of International and Comparative Law 135 O’Connell, J., ‘Gambling with the Psyche: Does Prosecuting Human Rights Violations Console their Victims?’ (2005) Harvard International Law Journal 295 Othman, M., ‘The Protection of Refugee Witnesses by the International Criminal Tribunal for Rwanda’, (2002) International Journal of Refugee Law, 495 Oosterveld, V., ‘Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes’, (2009) American University Journal of Gender, Social Policy and the Law 407 ———, ‘Gender-sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the ICC’, (2005) New England Journal of International and Comparative Law 119 Oosterveld, V., Perry, M. and McManus, J., ‘The cooperation of States with the International Criminal Court’, (2002) Fordham International Law Journal 767 Palombella, G., ‘The Rule of Law as Institutional Ideal’ (2010) Comparative Sociology 4 Pentelovitch, N. H., ‘Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at International Criminal Tribunals’, (2008) Georgetown Journal of International Law 445 Peskin, V., ‘Courting Rwanda, The Promises and Pitfalls of the ICTR Outreach Programme’, (2005) Journal of International Criminal Justice 950 Petrig, A., ‘Negotiated Justice and the Goals of International Criminal Tribunals: With a focus on the Plea-bargaining Practice of the ICTY and the Legal Framework of the ICC’ (2008) Chicago-Kent Journal International & Comparative Law 1 Pham, J. P., ‘A Viable Model for International Criminal Justice: The Special Court for Sierra Leone’ (2006) New York International Law Review 37 Pieslak, S., ‘The International Criminal Courts quest to protect Rape Victims of Armed Conflict: Anonymity as the Solution’, (2004) Santa Clara Journal of International Law 138 Pogge, T. W., ‘Cosmopolitanism and Sovereignty’ (1992) Ethics 48 Pozen, J., ‘Justice Obscured: The Non-disclosure of Witnesses’ Identities in ICTR Trials’ (2005) New York University Journal of International Law and Politics 281 Ralph, J., ‘International society, the International Criminal Court and American foreign policy’, (2005) Review of International Studies 27 ———, ‘Between Cosmopolitan and American Democracy: Understanding US Opposition to the International Criminal Court,’ (2003) International Relations 195

386

Bibliography

Rao, P. S., ‘Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation?’ (2004) Michigan Journal of International Law 929 Rapp, S. J., ‘The Compact Model in International Criminal Justice: The Special Court for Sierra Leone’ (2008) Drake Law Review 11 ———, ‘Achieving Accountability for the Greatest Crimes—The Legacy of the International Tribunals’ (2007) Drake Law Review 259 Rastan, R., ‘What is a case’ for the Purpose of the Rome Statute” (2008) Criminal Law Forum 435 Rawls, J., ‘Two Concepts of Rules’, (1955) Philosophical Review 3 Roach, S., ‘Value Pluralism, Liberalism, and the Cosmopolitan Intent of the International Criminal Court’, (2005) Journal of Human Rights 475 Robinson, P., ‘So You want to be an International criminal lawyer?: Getting and Defending a Case at the International Criminal Tribunal for Rwanda’, (2008) New England Journal of International and Comparative Law 277 ———, ‘Defending War Criminals in the Hague’, (2000) Champion 1 Rose, C., ‘Troubled Indictments at the Special Court for Sierra Leone the Pleading of Joint Criminal Enterprise and Sex-based Crimes’ (2009) Journal of International Criminal Justice 353 Rosenne, S., ‘Controlling Interlocutory Aspects of Proceedings in the International Court of Justice’ (2000) American Journal of International Law 307 Rutledge, K. D., “Spoiling Everything”—But for Whom? Rules of Evidence and International Criminal Proceedings’, (2003–2004) Regent University Law Review 151 Schaack, B. V., ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as an Object Lesson,’ (2009) American University Journal of Gender, Social Policy and the Law 361 Schabas, W., Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2010) John Marshall Law Review 535 ———, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’ (2009) Journal of International Criminal Justice 731 ———, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ (2009) Criminal Law Forum 5 Schabas, W. A., ‘International Criminal Tribunals: A Review of 2007’, (2008) Northwestern University Journal of International Human Rights 1 ———, ‘International Decision: Barayagwiza v. Prosecutor’, (2000) American Journal of International Law 563 Scharf, M. P. & Kang, A., ‘Errors and Missteps: Key Lessons The Iraqi Special Tribunal can Learn from the ICTY, ICTR and SCSL’, (2005) Cornell International Law Journal 911

Bibliography

387

Scharf, M. P., ‘Trial and Error: An Assessment of the First Judgment of the Yugoslavia War Crimes Tribunal’, (1997–1998) New York University Journal of International Law and Politics 167 ———, ‘Have we Really Learned the Lessons of Nuremberg?’ (1995) Military Law Review 65 Sirleaf, M., ‘Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the Truth and reconciliation Commission for Liberia’, (2009) Florida Journal of International Law 209 Sluiter, G., ‘I beg you, please come Testify’—The Problematic Absence of Subpoen Powers at the ICC’ (2009) New Criminal Law Review 590 ———, ‘Due process and criminal procedure in the Cambodian Extraordinary Chambers’ (2006) Journal of International Criminal Justice 314 ———, ‘The ICTR and the protection of witnesses’ (2005) Journal of International Criminal Justice 962 ———, ‘The ICTY and Offences against the Administration of Justice’, (2004) Journal of International Criminal Justice 631 ———, ‘Implementation of the ICC Statute in the Dutch Legal Order’ (2004) Journal of International Criminal Justice 158–178 Sobe, N. W., ‘Rethinking Cosmopolitanism as an Analytic for the Comparative Study of Globalisation and Education’ (2009) Current Issues in Comparative Education 6 Stromseth, J. E., ‘Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?’ (2007) Georgetown Journal of International Law 251 Swart, B., ‘Cooperation Challenges for the Special Tribunal for Lebanon’, (2007) Journal of International Criminal Justice 1153 Tallgren, I., ‘The Sense and Sensibility of International Criminal Law’ (2002) European Journal of International Law 561 Tamanaha, B., ‘A Concise Guide to the rule of law’, (2007) Legal Studies Research Paper ———, ‘The Rule of Law for Everyone?’ (2003) St. John’s Legal Studies Research Paper Thalmann, V., ‘French Justice’s Endeavours to Substitute for the ICTR’, (2008) Journal of International Criminal Justice 995 Teitel, R., ‘Humanity Law: A New Interpretive Lens on the International Sphere’, (2008) Fordham Law Review 667 Tiefenbrun, S. W., ‘The Paradox of International Adjudication: Developments in the International Criminal Tribunals for Former Yugoslavia and Rwanda, The World Court and the International Criminal Court’, (2000) North Carolina Journal of International Law and Commercial Regulation 551 Tuinstra, J. T., ‘Assisting an Accused to Represent Himself; Appointment of Amici Curiae as the Most Appropriate Option’ (2006) Journal of International Criminal Justice 47

388

Bibliography

Turner, J. I., ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) Virginia Journal of International Law 529 Van der Burg, W., ‘Two models of law and morality’, (1999) Associations 61 Van der Hor, T., ‘Cosmopolitan Security A Model for Future Global Security?’(2009) HUMSEC Journal 1 Vsilev, S., ‘Proofing the Ban on witness Proofing’ Did the ICC Get it Right’, (2009) Criminal Law Reform 193 Wald, P. M., ‘Trying war Crimes in International Courts’, (2003) International Journal of Legal Information 278 ———, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’, (2002) Yale Human Rights & Development Law Journal 217 ———, ‘To Establish Incredible Events by Credible Evidence: The Use of Affidavit Testimony In Yugoslavia War Crimes Tribunal Proceedings’, (2001) Harvard International Law Journal 535 ———, ‘The International Criminal Tribunal for the Former Yugoslavia comes of Age: Some Observations on Day-To-Day Dilemmas of An International Court’, (2001) Washington University Journal of Law and Policy 87 Waldorf, L., “A Mere Pretence of Justice’: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal’, (2010) Fordham International Law Journal 1221 Wallach, E. J., ‘The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure?’ (1999) Columbia Journal of Transnational Law 851 Weitz, Y., ‘Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement’, (2009) Cardozo Journal of Law & Gender 357 West, R., ‘Is the Rule of Law Cosmopolitan’ (2000) Quinnipiac Law Review 259 Wierda, M., ‘Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon’ (2007) Journal of International Criminal Justice 1065 Wippmann, D., ‘The Costs of International Justice’ (2006) American Journal of International Law 861 Wood, S. K., ‘A Woman Scorned for ‘Least Condemend’ War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda’, (2004) Columbia Journal of Gender and Law 274 Zahar, A., ‘International Court and Private Citizen’ (2009) New Criminal law Review, 569

4

Other Reports

Glodstone, J. A., An Extraordinary Experiment in Transitional Justice in Open Society Justice Initiative: The Extraordinary Chambers (Justice Initiative 2006)

Bibliography

389

Human Rights Watch, Unfinished Business—Closing Gaps in the Selection of ICC Cases, (1 Septempber 2011) ———, Justice in Motion: The Trial Phase of the Special Court for Sierra Leone (2005) ———, Bringing Justice: The Special Court for Sierra Leone 16(8(A))(2004) Human Rights First, Prosecuting Genocide in Rwanda: at III(D)(4)(1997) A Human Rights First report on the ICTR and National Trials July 1997 Human Rights Watch & Fédération Internationale Des Ligues Des Droits De L’Homme, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath 1 (1996) Jeannet, S., ‘Testimony of ICRC Delegates before the International Criminal Court International Review of the Red Cross No.840’, 13 December 2000 Jefferson, L. R., ‘In War as in Peace: Sexual Violence and Women’s Status’, ( Human Rights Watch World Report 2004) Kendall, S. & Staggs, M., Interim Report on the Special Court for Sierra Leone, (War Crimes Studies Center University of California, Berkeley, April 2005) Kendall, S., Cross-Examination of Witness TF2-067, Special Court Monitoring Programme Update No.15 (Berkeley War Crimes Studies Center, University of Carlifornia Berkeley 3 December 2004) Mahony, C., The Justice Sector afterthought: Witness Protection in Africa (Institute of Security Studies 2010) Murithi, T., ‘The African Union
and the International Criminal Court: An Embattled Relationship?’ Policy Brief The Institute for Justice and Reconciliation (March 2013) Redress, Ending Threats and Reprisals against Victims of Torture and Related International Crimes: A call to Action, December 2009 Redress, Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court September 2006 Rona, G., ‘The ICRC Privelege not to Testify: Confidentiality in Action’ (March 2002) International Review of the Red Cross No. 845 Sanin, K. and Stirnemann, A., Child Witnesses at the Special Court for Sierra Leone (War Crimes Studies Center University of California, Berkeley February 2006) Scheffer, D. & Saliba, M., ‘The Authority of the Co-investigating Judges to call for Witness Testimony’ (2009) Cambodia Tribunal Monitor Stover, E., The Witnesses: War Crimes and the Promise of Justice in The Hague (Human Rights Center University of California Berkeley May 2003) Zwier, P. J. (eds.), Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development (NITA Practical Guide Series, 2000)

390 5

Bibliography

Table of Treaties (Including Conventions, Agreements, Declarations and Resolutions etc.) International Criminal Court

Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an Interna­ tional Criminal Court of 17 July 1998, UN Doc. A/CONF. 183/9 ICC Rules of Procedure and Evidence, UN Doc. PCNICC/2000/1/Add.1 (2000) Regulations of the Court, ICC-BD/01-01-04 17-28 May 2004 Registry Regulations Regulations of the Office of the Prosecutor ICC-BD/05-01-09, 23th April 2009 The Relationship Agreement between the United Nations and the International Criminal Court 20 August 2004 (A/58/874) MOU between the UN and the ICC concerning cooperation between the UN organization mission in the DRC (MONUC) and the ICC, ICC-01/04-01/06-1267-Anx2 07-042008 8 November 2005 Summary Report on the Round Table on the Protection of Victims and Witnesses Appearing Before the International Criminal Court Assembly of States Parties to the Rome Statute of the International Criminal Court Seventh session The Hague, Volume II, ICC-ASP/7/20, 14–22 November 2008 ICC Outreach Report 2009, public Information and Documentation Section/Outreach Unit Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary executions, A/63/313, 20 August 2008 Victims and Witnesses Unit’s consideration on the system of witness protection and the practice of “preventive relocation”, ICC-01/04-01/07-585, 12 June 2008 Victims and Witnesses Unit Protocol on the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial, 31 January 2008, ICC-01/04-01/06-1150-Conf ICC Report on the activities of the Court, ICC-ASP/7/25 29 October 2008 Philip Kirsch Address to the United Nations General Assembly 1 November 2007 Judge Philip Kirsch Address to the United Nations General Assembly 1 November 2007 International Criminal Court Assembly of States Parties Sixth Session New York 30 November to 14 December 2007 ICC-ASP/6/INF.2, 19 October 2007 Report of the Bureau on cooperation; “Report on Cooperation’ International Criminal Court, Assembly of States Parties, ICC-ASP/6/21 19 October 2007 ICC Eleventh Diplomatic Briefing of the International Criminal Court, The Hague, 10 October 2007, Information Package ICC Compilation of Statements, Tenth Diplomatic Briefing of the International Criminal Court, Brussels, 26 June 2007 Situation in Uganda, Prosecutor’s Submission of Authorities Relied Upon at Hearing Held on 16 June 2005, ICC-02/04-14, 13 February 2007

Bibliography

391

Resolution ICC-ASP/5/Res.3; Resolution ICC-ASP/5/32 1 December 2006 ICC Second public hearing of the Office of the Prosecutor NGOs and Other Expertsm New York, 18 October 2006 Second public hearing of the Office of the Prosecutor Interested States New York, 17 October 2006 OTP, Report on the Activities performed during the First Three years (June 2003–June 2006) 12 September 2006 Report on the activities of the Court, ICC-ASP/4/16, 16 September 2005 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005 Assembly of States Parties to the Rome Statute of the International Criminal Court Second session New York, 8–12 September 2003 Speech by the Registrar of the International Criminal Court, Information session for diplomatic representations 8 June 2005; See Report on the activities of the Court, ICC-ASP/4/16, 16 September 2005 Netherlands The International Criminal Court Implementation Act (2002) Finland Act on the Implementation of the Provisions of a Legislative Nature of the Rome Statute of the International Criminal Court and on the application of the Statute, No. 1284/2000, Helsinki 28 December 2000 South Africa, The Implementation of the Rome Statute of the ICC Act 27 of 2002 Sweden, Cooperation with the International Criminal Court Act (2002: 329) Australian, International Criminal Court Act 2002: New Zealand International Crimes and International Criminal Court Act 2000 Spain Ley orgánica 18/2003, de 10 de diciembre 2003 de Cooperación con la corte Penal Internacional Swiss Federal Law of 22 June 2001 on Co-Operation with the International Criminal Court Kenyan The International Crimes Act 2008 Section 12(3); see Section 13 Uganda The International Criminal Court Bill, Bill No. 18 2006 Clause 13(1)–(3) DRC Loi Modifiant et Completant certaines dispositions du code penal, du Code Penal, du Code de l’organisation et de la Competence Judiciares, du Code Penal Militaire et du code Juduciare Militaire, en Application du Statut de la Cour Penale Internationale Kinshasa, Septembre 2005 Act No. 65 of 15 June 2001 relating to the Implementation of the Statute of the International Criminal Court of 17 July 1998 (the Rome Statute) in Norwegian law Subdivision J—Crimes against the administration of the justice of the International Criminal Court, International Criminal Court (Consequential Amendment) Act 2002

392

Bibliography

Swiss Federal Law of 22 June 2001 on Cooperation with International Criminal Court. Finland Acts on the Implementation of the provisions of a Legislative Nature of the Rome Statute of the International Criminal Court and on the Application of the Statute. Offences against the administration of justice by the International Criminal Court (1285/2000), Extracts from the Finish Penal Code Act No. 1285/2000. USA Non-Paper on Rules of Investigation, Procedure and Evidence for the International Criminal Court Ad Hoc Committee on the Establishment of an International Criminal Court, Summary of observations made by the Representative of the United Kingdom of Great Britain and Northern Ireland, Press Release No. 32/95, 7 April 1995 Report of the working group on procedural matters UN Doc. A/CONF.183/C.1/ WGPM/L.2/Add.7; Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, A/AC.249/1998/L.13, Article 63 Proposal submitted by the Netherlands and Poland, PCNICC/1999/WGRPE/DP.31 (3 August 1999) PCNICC/1999/WGRPE/RT.5 /Rev.1 (11 August 1999) Rule 6.32. PCNICC/2000/WGRPE (6)/RT.10 (23 June 2000) Rule 6.32. PCNICC/1999/WGRPE/RT.5 (1 July 1999) Rules 6.32. PCNICC/2000/WGRPE/L.10 (27 June 2000) Rules 6.37. PCNICC/1999/WGRPE/RT.5 /Rev.1 (11 August 1999) Rules 6.33. Final Act of the United Nations Diplomatic Conference of Plenipotentairies on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/10, Annex 1 Report of the International Law Commission on the work of its Forty-fifth Session, A/48/10, 3 May to 23 July 1993 Report of the Working group on procedural Matters UN Doc A.Conf.183/C.1/WGPM/L.2/ Add.6 Apprehension and surrender, Cooperation between States and the ICC Remarks of the U.S. Delegation April 8, 1996 Preparatory Committee on the International criminal Court Discusses Draft Articles on Arrest, Pre-trial Detention 9 April 1996 Press Release L/2780 Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute of the ICC, Working Paper Submitted by France United Nations General Assembly, A/AC.249/L.3, 6 August 1996 Preparatory Committee on the Establishment of an International Criminal, Tentative draft on procedure Working paper submitted by Japan United Nations General Assembly, A/AC.249/L.7 13 August 1996; Prepcom Report Vol. II Preparatory Committee on the Establishment of an International Criminal 1–12 December 1997 decisions taken by the preparatory Committee at its session held from 1–12 1997, A/AC.249/1997/L.9/Rev.1 18 December 1997

Bibliography

393

The Working Group submitted a Preliminary Draft consolidated text to the Preparatory Committee on 25 March 1998, A/AC.249/1998/WG.4/CRP.2 Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Procedural Matters Preliminary draft consolidated text Article 62(44) Evidence, A/AC.249/1998/WG.4/CRP.2, 25 March 1998 Evidence United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June–17 July 1998, A/ CONF.183/C.1/WGPM/L.34, 29 June 1998. UN DOC.PCNICC/2000/WGRPE(5)/DP.3, UN DOC.PCNICC/2000/WGRPE(6)/DP.3, 13 March 2000. Judicial (Mutual) Assistance, Meeting of Experts on the Establishment of a Permanent International Court International Cooperation and Judicial Assistance prepared by Pieter Kruger, South African Department of Foreign Affairs Doc. No. 19960710 Report of the International Law Commission on the work of its forty-sixth session, UNGA A/CN.4/L.491/REV.1 (8 July 1994) Report of the International Law Commission on the Work of Its Forty-sixth session, 2 May–22 July 1994, Supp.No.10 at 110; UN Doc A/49/10; UNGA A49355 (1 September 1994) Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UNGA Supplement No. 22 A/50/22 Ad Hoc Committee on the Establishment of an International Criminal Court Provisional estimates of the staffing, structure and costs of the establishment and operation of an International Criminal Court, Preliminary report of the SecretaryGeneral A/AC.244/L.2, 20 March 1995 Preparatory Committee on the Establishment of an International Criminal Court: Draft Report of the Preparatory Committee UNGA A/AC.249/L.15 23 August 1996 Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute of the ICC, Working Paper Submitted by France UNGA A/AC.249/L.3 (6 August 1996) United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Committee of the Whole Working Group on Procedural Matters, Text put forward by a group of interested Delegations on Article 64, A/CONF.183/C.1/WGPM/L.41, 4 July 1998 Working Group on Procedural Matters Article 64, A/CONF.183/C.1/WGPM/L.41 Draft Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/AC.249/L.15 23 August 1996; Article 43, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court Supplement No. 22 (A/50/22), para. 181 Proposal submitted by Egypt for Article 43 the Egyptian Delegation, A/AC.249/WP.11 19 August 1996 Preparatory Committee on the Establishment of an International Criminal Court 19960819_AAC.249WP.11(E)[1]

394

Bibliography

Prepcom Report, A/AC.249/L.15 23 August 1996 Proposals from the Netherlands, Australia, USA and Japan, A/AC.249/CRELIJ 27 August 1996; Non-paper/WG.4/No. 10 8 August 1997 Proposal of the United Kingdom; Non-paper I WG.4, N o.13 12 August 12 1997 Japanese proposal on Evidence Revised Abbreviation Compilation UN Doc.A/AC.249/1997/WG.4/CRP.9 ‘Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997’, UN Doc.A/AC.249/1997/L.8/Rev.1, pp. 36–37 Proposal by New Zealand on Article 43’, Non-Paper/WG.4/No.19; ‘Amended Proposal by New Zealand on Article 43’, Non-Paper/WG.4/No.19/Rev.1; UN Doc.A/AC.249/1997/ WG.4/CRP.9 Report of the InterSessional Meeting from 19–30 January 2008 in Zutphen, A/AC.249/1998/L.13; Prepcom Report, A/CONF.183/2/Add.1 (1998) Canada proposal regarding Article 68,’ UN Doc.A/CONF.183/C.1/WGPM/L.58/Rev.1 UN Doc. A/Conf.183/C.1/WGPM/L.58 and A/Conf.183/C.1/WGPM/L.58/Rev.1 (6 July 1998), proposal submitted by Canada (Art 68) UN DOC.PCNICC/199/WGRPE/DP.19, 26 July 1999 Prepcom Report A/AC.249/1998/L.13 4 Febraury 1998 Report of the Victims Rights Working Group by Yael Danieli Ph.D. International Society for Traumatic Stress Studies 19980615 NGO VRWG UD(E) Rome United Nations FAO, 15 June–17 July 1998 Ad Hoc Committee on the Establishment of an International Criminal Court General Assembly Official Records · Fiftieth Session Supplement No. 22 (A/50/22) Proposal by the Delegation of the Netherlands 7th of April 1996 Model Treaty on Mutual Assistance in Criminal Matters, UN Doc.A/Res/45/117, Annex Article 5 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, Report of Prep Comm. Addendum (15 June–17 July 1998) Report of the working group of judicial cooperation and assistance A/CONF.183/C.1/ WGIC/L.11/ADD.1 and CORR.1, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, 15 June to 17 July 1998, Volume II, Summary records of the plenary meeting and of the meeting of the Committee of the whole Report of the Working Group on Procedural Matters, A/CONF.183/C.1/WGPM/L.2/ ADD.2 Provisional Measures, Compilation of Proposals on Judicial Cooperation and Enforcement Submitted to August 1996 Phase of The Preparatory Committee on the Establishment of an International Criminal Court 22 August 1996 Judicial (Mutual) Assistance, Meeting of Experts on the Establishment of a Permanent International Court International Cooperation and Judicial Assistance prepared by Pieter Kruger, South African Department of Foreign Affairs, 19960710_ST_SOUTHAFRICA_UD(E)

Bibliography

395

Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft summary Rapporteur: Mr. Jun Yoshida (Japan) A/AC.249/ CRP.6/Add.1 10 April 1996, 25 March–12 April 1996 International Law Commission Draft Report of the International Law Commission on the work of its forty-fifth session, A/48/10, 3 May–23 July 1993 UN Report of the Ad Hoc Committee on the Establishment of an International Criminal Court General Assembly Official Records, Fiftieth Session Supplement No. 22 (A/50/22) Report of the Preparatory Committee on the Establishment of an International Criminal Court Volume II (Compilation of proposals) UNGA Fifty-first Session Supplement No. 22, A/51/22 1996 ILC Report of the International Law Commission on the work of its forty-sixth session, UNGA A/CN.4/L.491/REV.1 8 July 1994 UNGA Forty-ninth Session, Supplement No. 10 (A/49/10) UNGA (A/C.6/51/L.10, 14) November 1996 Ad hoc Committee Report on the Establishment of the International Criminal Court 3–13 April 1995 Comments received to para. 4 UNGA Resolution 49/53 on the Establishment of an International Criminal Court Report of the Secretary-General A/AC.244/1/Add.1 30 March 1995 UNGA Fifty-first Session Sixth Committee Establishment of an International Criminal Court, A/C.6/51/L.10, 14 November 1996 Report of the working Group on procedural Matters’, UN Doc. A/CONF.183/C.1/ WGPM/L.2

6

International Criminal Tribunal for Rwanda

Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, S.C.Res.955, U.N. Doc. S/RES/955 ICTR Rules of Procedure and Evidence Report of the International Criminal Tribunal for Rwanda, A/65/188-S/2010/408, 30 July 2010 ICTR Press Release, Former Witness Sentenced to 9 Months for Contempt ICTR/INFO9-2-541.EN 3 December 2007 ICTR Press ICTR Witness Pleas Guilty to Giving False Testimony ICTR/INFO-9-2-529. EN, Arusha, 10 September 2007 ICTR Press Release, Defence in ‘Military International Trial Begins Today ICTR/INFO9-2-427.EN, 11 April 2005 ICTR News Letter, Newly Elected President Erik Mose Addresses Staff, Vol. I, No. 2, July 2003

396

Bibliography

ICTR Eighth Annual Report U.N. Doc. A/58/140, 11 July, 2003 ICTR Annual Report U.N. Doc. A/55/435-S/2000/927, 2000 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, (1999) Third Annual Report UN Doc.A/53/429-S/1998/857 (1998) Second Annual Report of the ICTR, UN Doc.A/52/582 and S/1997/868, 2 December 1997

7

International Criminal Tribunal for the Former Yugoslavia

Statute of the International Criminal Tribunal for the Former Yugoslavia ICTY Rules of Procedure and Evidence ICTY press release Tabaković Pleads Guilty, Sentenced to Three Months’ Imprisonment, 15 March 2010 The ICTY Manual on Developed Practices Prepared in conjunction with UNICRI as part of a project to preserve the legacy of the ICTY (UNICRI Publishers 2009) ICTY Information Booklet for ICTY Witnesses (Victims and Witness Section 2007) Procedure for the Investigation and Prosecution of Contempt before the International Tribunal, 6 May 2004 Annual Report of the International Criminal Court for the Former Yugoslavia for 2001 Sixth Annual Report of the ICTY (1999) ICTY Press Release Tadic Case: Update Witness Opacic appeals against the order that he be returned to the custody of Bosnia and Herzegovina, CC/PIO/207-E The Hague, 2 June 1997 Fourth Annual Report of the ICTY (1997) ICTY Second Annual Report UN Doc.A/50/365; S/1995/728, 23 August 1995 ICTY First Annual Report U.N. Doc. S/1994/1007, A/49/342, 29 August 1994

8

Special Court for Sierra Leone

Statute of the Special Court for Sierra Leone SCSL Rules of Procedure and Evidence Agreement between the U.N. and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002 Special Court Agreement Ratification Act (2002) Headquarters Agreement between the Republic of Sierra Leone and the Special Court for Sierra Leone

Bibliography

397

Practice Direction on Allowances for Witnesses and Expert Witnesses Testifying in the Hague, 8 June 2007 SCSL Second Annual Report of the President of the Special Court for Sierra Leone: For the Period 1 January 2004–17 January 2005 First Annual Report of the President of the Special Court for Sierra Leone: For the Period 2 December 2002–1 December 2003

9

United Nations

Universal Declaration of Human Rights International Covenant on Civil and political Rights UNSC Resolution 1664, S/RES/1664 (2006) 29 March 2006 UN Guidelines on Justice in Matters involving Child Victims and Witnesses, ECOSOC Resolution 2005/20 of 22 July 2005 UN Guidelines on Justice in Matters involving Child Victims and Witnesses stipulate that ‘child victims should, wherever possible, receive reparations in order to achieve full redress, reintegration and recovery United Nations, resolution 1503 of 28 August 2003 and 1534 of 26 March 2004. UNSC Res.1431, U.N. Doc S/RES/1431 (2002) 14 August 2002 Report of the Office of Internal Oversight Services on the follow-up to the 1997 audit and investigation of the International Criminal Tribunal for Rwanda, U.N. Doc. A/52/784, 6 February 1998 Report of the Office of Internal Oversight Services on the Audit and Investigation of the International Criminal Tribunal for Rwanda UN Doc. A/51/789 6 February 1997 UN High Commissioner for Human Rights Field Operation in Rwanda, Killings and Other Attacks Against Genocide Survivors and Persons Associated With Them From January Through December 1996, Status Report as at 24 January 1997, UN Doc. HRFOR/STRPT/33/24 Jan. 1997/E Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, 3 May 1993 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of power UNGA Resolution 40/34 29 November 1985, Article 6(d).

10 Websites Aegis http://www.aegistrust.org American Non-Governmental Organizations Coalition for the International Criminal Court, Administration update http://amicc.org/usicc/administration

398

Bibliography

Amnesty International http://www.amnesty.org BBC News, African Union accuses ICC of ‘hunting’ Africans 27 May 2013 available at http://www.bbc.co.uk/news/world-africa-22681894 BBC News Clinton Statement on war crimes court 31 December 2000 http://news.bbc .co.uk/1/hi/1095580.stm Coalition for the International Criminal Court http://www.iccnow.org Human Rights Watch www.hrw.org ICC www.icc-cpi.int ICTY website http://www.icty.org/ ICTR http://www.ictr.org SCSL website http://www.sc-sl.org The Avalon Project, Documents in Law, History and Diplomacy av http://avalon.law .yale.edu/imt/imtconst.asp The Project on International Courts and Tribunals, The International Judiciary in Context http//www.pict-pcti.org The U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) http://www.pepfar.gov/ about/index.htm Times online, Chaos reigns at International Criminal Court trial of Thomas Lubanga January 29, 2009 http://www.timesonline.co.uk/tol/news/world/africa/article560 6892.ece Racheal Irwin, Witness admits to false Statements, June 19 2009, available at http:// www.lubangatrial.org/2009/06/19/witness-admits-to-false-statements/ Defense Witnesses Claim ICC Agents Concocted Evidence available at http://allafrica .com/stories/201002150005.html The Statute Book (Al-Furqãn) http://www.masjidtucson.org/quran/noframes/ch25 .html; Morals and Ethics, Greater Sin http://moralsandethics.wordpress.com/ greater-sins/ South African Foreign Policy Initiative, Why ICC is repelling Africa http://www.safpi .org/news/article/2013/why-icc-repelling-africa Shaheed Ayatullah Abdul Husain Dastghaib Shirazi, Punishment for False Testimony Imam Reza (A. S.) http://www.imamreza.net/eng/imamreza.php?id=7368 Mendy Hecht The 613 Mitzvot http://www.chabad.org/library/article_cdo/aid/756399/ jewish/The-613-Mitzvot.htm

11

Bibliography for Further Reading on ICC Witness Protection

11.1

Some Case-Law

Situation in the Democratic Republic of Congo (ICC-01/04) Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision

Bibliography

399

on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, paras. 21–23 Prosecutor v. Lubanga, Decision on the Prosecutions application for the Admission of the Prior Recorded Statements of two Witnesses, ICC-01/04-01/06, 15 January 2009, para. 17 Prosecutor v. Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/062842, 14 March 2012 paras. 115–117 & fn 234 Prosecutor v. Lubanga Transcript 2 ICC-01/04-01/06, 4 March 2009, p. 63 Prosecutor v. Lubanga, Decision on the “Prosecution’s Request for Non-Disclosure of Information in Transcripts of Re-Interviews with Prosecution Witnesses” ICC01/04-01/06, 7 June 2010, para. 16 & 21–23 Prosecutor v. Katanga et al., “Decision on the Use of Summaries of the Statements of Witnesses 267 and 243” issued on 3 April 2008, ICC-01/04-01/07, 25 June 2008 Prosecutor v. Katanga et al., Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, ICC-01/04-01/07, 23 January 2008, paras. 42–50 Prosecutor v. Lubanga, Reasons for Oral Decision lifting the Stay of Proceedings ICC01/04-01/06 23 January 2009, para. 41 Prosecutor v. Lubanga Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, ICC-01/04-01/06, 8 July 2010, para. 27 Prosecutor v. Lubanga Decision on Various issues related to Witnesses Testimony during Trial, ICC-01/04-01/06-1140, 29 January 2008, paras. 31–43 Prosecutor v. Katanga et al., Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07, 01 December 2009, para. 58 Prosecutor v. Lubanga, Decision on the Defence request for a Witness to Evidence via video-link, ICC-01/04-01/06, 9 February 2010, para. 15, 23 Prosecutor v. Lubanga, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’, ICC-01/04-01/06-568, 13 October 2006, para. 37 Prosecutor v. Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, ICC-01/04-01/06773, 14 December 2006, para. 21 (hereinafter, Lubanga Appeal against decision of Pre-Trial); It is worth mentioning that in line with the above general principles in case of non-disclosure in Lubanga, redactions were reviewed by the Chamber and some were lifted during the course of the trial see Lubanga Judgment paras 117

400

Bibliography

Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06, 30 January 2009, p. 9 Prosecutor v. Katanga et al., Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventative Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, ICC-01/04-01/07, 25 April 2008 para. 36. Prosecutor v. Lubanga, Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses, ICC-01/04-01/06, 19 September 2006. Prosecutor v. Katanga et al., Prosecution’s response to “Victims and Witnesses Unit and Defence Teams joint protocol specifying concrete modalities of disclosure of protected witnesses’ identities”, ICC-01/04-01/07, 16 February 2010, paras. 1(i)–(ii) & 2–3. Prosecutor v. Lubanga, Decision on Disclosure Issues Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/06, 24 April 2008, paras. 35 & 41 Prosecutor v. Katanga et al., Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, ICC-01/04-01/07 21 April 2008 para. 11 Prosecutor v. Lubanga Separate and Dissenting Opinion of Judge Blattmann attached to Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/06 28 April 2008 para. 6

11.2 Books/Journals

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010) pp. 822–826 & 1021–1022; Donat-Cattin, D. ‘Article 68 Protection of the Victims and Witnesses and their Participation in the Proccedings’, in Otto Trifferer ed, Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (Verlag C.H. Beck, 2008) pp. 1275–1300; Helen Brady ‘Protective and Special Measures for Victims and Witnesses,’ in Roy S. Lee The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc., 2001) pp. 434–456; Micheal E. Kurth, ‘Anonymous Witnesses before the International Criminal Court: Due Process in dire Straits’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 615–634; Stuart Beresford, ‘Child witnesses and the international criminal justice system: does the International Criminal Court protect the most vulnerable?’(2005) Journal of International Criminal Justice 721, 734; Marc Dubuisson, Anne-Aurore Bertrand and Natacha Schauder, ‘Contribution of the Registry to greater respect for the Principles of Fairness and Expeditious Proceedings before the International Criminal Court’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 565–584; Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor

Bibliography

401

v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) International Criminal Law Review 115–153 at 121; David Scheffer, ‘A review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court regarding the Disclosure of Evidence’, in Carsten Stahn and Goran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, 2009) pp. 585–597; Kai Ambos ‘The Right of Non-Self-Incrimination of Witnesses Before the ICC’ (2002) Leiden Journal of International Law 155, 173; Frank Terrier ‘The Procedure before the Trial Chamber’ in A. Cassesse, P. Gaeta and J. R. W. D. Jones (eds.) The Rome Statute of the International Criminal Court: A Commentary (vol. II, Oxford University Press, 2002) pp. 1277–1318 at 1305; Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Intersentia, 2002) pp. 247–251; Valerie Oosterveld, Mike Perry and John McManus, ‘The cooperation of States with the International Criminal Court’ (2002) Fordham International Law Journal 767, 791 Silvia A.Fernandez de Gurmendi, ‘Victims and Witnesses in Roy S. Lee (eds.) The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, 2001) pp. 427–491

11.3

Drafting History

ILC Draft Report Doc. A/49/355 p. 22; Article 43, Draft Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/AC.249/L.15 23 August 1996; Article 43, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court Supplement No. 22 (A/50/22) para. 181; Section 76; See also proposal submitted by Egypt for Article 43 the Egyptian Delegation, A/AC.249/WP.11 19 August 1996 Preparatory Committee on the Establishment of an International Criminal Court 19960819_AAC.249WP.11(E)[1]; Prepcom Report, A/AC.249/L.15 23 August 1996, pp. 13 & 16; See also proposals from the Netherlands, Australia, USA and Japan, A/AC.249/CRELIJ 27 August 1996; Non-paper/WG.4/No.10 8 August 1997 Proposal of the United Kingdom; Non-paper I WG.4, N o.13 12 August 12 1997 Japanese proposal on Evidence; Revised Abbreviation Compilation UN Doc.A/AC.249/1997/WG.4/CRP.9 ‘Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997’, UN Doc.A/AC.249/1997/L.8/Rev.1, pp. 36–37; Proposal by New Zealand on Article 43’, Non-Paper/WG.4/No.19; ‘Amended Proposal by New Zealand on Article 43’, Non-Paper/WG.4/No.19/ Rev.1; UN Doc.A/AC.249/1997/WG.4/CRP.9 para. 4 (hereinafter, New Zealand proposal); Report of the InterSessional Meeting from 19–30 January 2008 in Zutphen, A/AC.249/1998/L.13; Prepcom Report, A/CONF.183/2/Add.1 (1998), p. 108; UN Doc. A/Conf.183/C.1/WGPM/L.58 and A/Conf.183/C.1/WGPM/L.58/Rev.1 (6 July 1998), proposal submitted by Canada (Art 68); Canada proposal regarding Article 68, ‘UN Doc.A/CONF.183/C.1/WGPM/L.58/Rev.1.; David Donat-Cattin ‘Article 68 Protection of the Victims and Witnesses and their Participation in the Proccedings’, in Otto

402

Bibliography

Triffterer (eds.) pp. 869–888 at 874; Prepcom Report A/CONF.183/2/Add.1 (1998) pp. 108–109; UN DOC.PCNICC/199/WGRPE/DP.19, 26 July 1999; Report of the Victims Rights Working Group by Yael Danieli Ph.D. International Society for Traumatic Stress Studies 19980615 NGO VRWG UD(E) Rome United Nations FAO, 15 June– 17 July 1998

11.4 Reports

Report on the activities of the Court, ICC-ASP/4/16, 16 September 2005; Victims and Witnesses Unit’s consideration on the system of witness protection and the practice of “preventive relocation”, ICC-01/04-01/07-585, 12 June 2008 Speech by the Registrar of the International Criminal Court, Information session for diplomatic representations 8 June 2005; See Report on the activities of the Court, ICC-ASP/4/16, 16 September 2005 Compilation of Statements, Tenth Diplomatic Briefing of the International Criminal Court, Brussels, 26 June 2007 ICC Report on the activities of the Court, ICC-ASP/7/25, 29 October 2008 para. 80; ICC Compilation of Statements, Tenth Diplomatic Briefing of the International Criminal Court, Brussels, 26 June 2007; ICC Eleventh Diplomatic Briefing of the International Criminal Court, The Hague, 10 October 2007, Information Package at p. 8 ICC Report of the Bureau on Cooperation, ICC/ASP/6/21 19 October 2007 paras. 46–50 ICC Outreach Report 2009, public Information and Documentation Section/Outreach Unit Summary Report on the Round Table on the Protection of Victims and Witnesses Appearing Before the International Criminal Court, available at http://www.icccpi .int/Menus/ICC/Structure+of+the+Court/Protection/ (last visited July 2010)

Index Ackerman, John 136 actus reus 130, 131, 132, 134, 229 Agreement on the Privileges and Immunities of the International Criminal Court (API) 269 alibi testimony 173–174 allowances for witnesses ICC 65, 249, 337 ICTR 149 ICTY 81 SCSL 199–202 Ambos, Kai 16, 46, 241 amicus curiae 128, 137, 139, 182, 185, 186 API (Agreement on the Privileges and Immunities of the International Criminal Court) 269 appearance before court ICC 271–277 state cooperation 260–266, 278–279 Appiah, Kwame Anthony 4, 11, 17 Archibugi, Daniele 5, 36–37, 44 Arendt, Hannah 36 Ashley, Richard 26–27 atheists, false testimony and 61 Austin, John 67 Australia, judicial cooperation with ICC 265, 309 Austria, judicial cooperation with ICC 279 Barry, Brian 13 Beardsworth, Richard 3, 13, 22–23 Beitz, Charles 13, 16, 31 Benito, Odio 242 Bentham, Jeremy 13 Bitti, Gilbert 275 Bjorklund, Fredrik 42 Bohlander, Michael 127, 330 Bonomy, Iain 131 Borer, Tristan 5–6 Brady, Helen 281 Byron, Dennis 188 Cabrera, Luis 32 Campbell, Naomi 221–222

Caney, Simon 4, 7, 11, 21, 33, 34, 42, 58–61 capitalist globalisation 25 Cassese, Antonio 54, 127, 281 child soldiers 242–243 child witnesses 196 reliability 64–65, 320–321 solemn declaration 87–88, 282–283 Christianity, false testimony in 59–60 CICC (Coalition for the International Criminal Court) 44–45 Cicero 12–13 Clarke, Kamari Maxine 50 Coalition for the International Criminal Court (CICC) 44–45 Coan, Christin 119, 136 Cockayne, James 329 Cohen, David 196 Combs, Nancy 149, 173, 175, 176–177, 190, 200, 218, 231 compellability of witnesses 223–224, 272, 312–313 compensation of witnesses see cost of witnesses Confirmation Hearing, use of witness summaries 291–292 contemporary cosmopolitanism 15, 16–20 traditional cosmopolitanism v. 14 contempt of court 339 jurisdiction of Courts 338 ICC 309–311, 312–314 ICTR 154 ICTY 127 SCSL 224 sanctions ICC 313 ICTR 181–183, 187 ICTY 126–133 SCSL 226–228 see also false testimony Convention on the Privileges and Immunities (UN), Article V (officials) 224 cooperation see state cooperation corroboration 118–119, 172–173, 216–217, 296 cosmopolitan community 42

404 cosmopolitan courts 35–51, 335 ICC as 11, 35–51, 70, 331, 334, 343, 345 ICTR as 144, 191, 193 ICTY as 140, 141 SCSL as 232–233 cosmopolitan criminal law 37–38 cosmopolitanism 2–5, 7–8, 32–33, 42 contemporary 14, 15, 16–20 critics of 20–21 Marxism 25–26 pluralism 24–25 postmodernism 26–28 realism 21–24 elements 19–20 institutional/legal 30, 31–33 as medium for societal transformation 28 moral 17, 31–32, 58–61 normative 3, 30 origins/traditional 12–16 cosmopolitan justice 56 cosmopolitan (term) 12 cost of witnesses ICC 249–251, 337 ICTR 148–150 ICTY 80–82 SCSL 199–202 credibility of witnesses 101–106, 163–164, 209–218, 292–295 admissibility of expert-witness testimony 119–121 alibi 173–174 assessment of witness testimony 218–220 corroboration 118–119, 172–173, 216–217, 296 examination/cross-examination  106–109, 111, 165–168, 211–213, 296–301, 338 hearsay-evidence 115–118, 174–175, 217–218 prior-/prior-inconsistent statements 109–115, 168–171, 213–216, 218–219, 304 questioning of witnesses 296–298, 301–304 rebuttal/rejoinder 171–172 see also false testimony; truthful testimony

Index credible testimony see truthful testimony crime-based witnesses 336 ICC 238–245 ICTR 144–145 ICTY 76–77 SCSL 195–197 cross-examination of witnesses 106–109, 111, 165–168, 211–213, 296–301, 338 see also questioning of witnesses cultural divergences and taboos 177, 178, 219, 305–306 Damaska, Mirjan 66 Dana, Shahram 313 deceased witnesses 99–100, 162, 208, 216–217, 290 Delanty, Gerard 28 Delmas-Mary, Mireille 273–274 Del Ponte, Carla 80 Democratic Republic of the Congo, judicial cooperation with ICC 265, 324 deposition 92, 160, 207 De Smet, Simon 285, 289 Diogenes 12 DiPardo, Elizabeth 114 direct oral testimony see live-testimony Dobson, Andrew 14 domestic affairs, foreign affairs v. and 21–22 “duelling expertsˮ scenario 79 duties and obligations of witnesses 5, 56–57 answer questions 129, 222–225 appearance before court 271–277, 279 cosmopolitan character of 57–62 follow directions of Tribunal 121–125, 129, 178–181, 220–225 ICC 271–277 ICTR 159–160, 178–181 ICTY 87–89, 121–125 SCSL 205–206, 220–225 testify and speak truth 56, 59, 87–89, 159–160, 206, 222–225 see also truthful testimony Eckert, Amy 41 Engels, Friedrich 25 Enlightenment 13, 21, 27 evidence 6–7 additional 108–109

Index evidence (cont.) hearsay-evidence 115–118, 174–175, 217–218 prior statements/prior-inconsistent statements 109–115 probative value of 295 requirements for admissibility 95 state obligations in collecting 262 via electronic means 286–287 in written form 94–95 see also testimony examination of witnesses 106–109, 338 see also cross-examination of witnesses; questioning of witnesses ex-parte communication 105 expert-witnesses 336 admissibility of testimonies 119–121 criticism on use 79 fact witnesses v. 77 ICC 242–245 ICTR 145–148 ICTY 77–79 qualification as 197–198 SCSL 197–198 eyewitnesses 144, 238–245 see also crime-based witnesses fact witnesses 76, 77 false testimony atheists and 61 ICC case law 316–321 ICC jurisdiction 7, 309–311, 314–316, 323, 333 ICTR case law 187–190 ICTY case law 137–140, 142 intent and knowledge 315 liability of witnesses 57 in monotheistic faiths 59–61 motives for giving 62–63, 135–137 obligation to punish false witnesses 51, 58, 71, 323 SCSL case law 228–231 see also sanctions on witnesses familiarisation/preparation of witnesses by ICC 251–257, 332 by ICTR 153–154 by ICTY 84–85 by SCSL 202–203 Feldham, Noah 69

405 fines 87, 129, 137, 181, 187, 228, 316 Finland, judicial cooperation with ICC 264, 265, 327 foreign affairs, domestic v. 21–22 France on ICC jurisdiction 308, 311 on international cooperation and judicial assistance to ICC 311 on modes of testimony 279–280 Franceschet, Antonio 40–41 Friman, Hakan 309, 311, 313 Gallimore, Timothy 192 generality 19–20 Germany, judicial cooperation with ICC 264–265 global political institutions, values 33–34 Habermas, Jürgen 14 Haidt, Jonathan 42 Hala, Vlastimil 67 Harris, Kenneth 328 Hayden, Patrick 40 Hayden, Robert 138 hearsay-evidence 115–118, 174–175, 217–218 definition 115 probative value 115–116 Held, David 4, 11, 15–16, 17–18, 22, 23, 25–26, 29, 32–33, 37 Hirsh, David 5, 37 HIV/AIDS 22 hostility of witnesses 114, 300 human rights 14, 16 ICC (International Criminal Court) cooperation with States 257–269, 272–277, 309, 311, 323–329 as cosmopolitan court 11, 35–51, 70, 331, 334, 343, 345 creation 38 criticism on 46–47 mission 46 as moral institution 50–51, 67–71, 342–344, 346 obligation to punish false witnesses 71 obligatory nature of summons 264–265 opposition and support to 43–44 preliminary examinations 49

406 ICC . . . (cont.) Prosecutor v. Bemba 243–244, 263, 284–285, 332 Prosecutor v. Katanga et al., attendance of witnesses 274 audio/video evidence 285, 291 crime-based witnesses in 239, 240, 241 cultural and interpretation issues 333 false testimony 316–318, 324, 340 free assessment of evidence 282 incriminating testimony content 294–295 protection of witnesses 269 questioning/cross-examination 296, 298 role of witnesses 271 solemn declaration 283 transcripts/written statements 290, 291 Prosecutor v. Kenyatta 247, 251, 254, 255–256, 332 Prosecutor v. Lubanga, crime-based witnesses in 239, 240, 241, 242, 333 examination/cross-examination 296, 298, 299 expert-witnesses in 243, 244, 277 false testimony 283, 318–321, 340 familiarisation/proofing of witnesses 252, 254, 332 incentives for witnesses 249, 331, 340 oral testimony 234 protection of witnesses 270 relevance of testimony 292–293 solemn declaration 282 sourcing of witnesses 245–246, 247 transcripts/written statements 289–290 witness summaries 291 Prosecutor v. Mbarushimana 304 Prosecutor v. Ngudjolo 295, 304, 305, 333 Prosecutor v. Ruto 332 Rules of Procedure and Evidence 3–4, 30 Rule 63 (general provisions related to evidence) 292, 293, 296 Rule 65 (compellability of witnesses) 275, 312, 313

Index Rule 66 (solemn undertaking) 238, 282, 283, 329 Rule 67 (live testimony by means of audio or video-link technology) 286 Rule 68 (prior recorded testimony) 289, 300 Rule 73 (privileged communications and information) 275, 313 Rule 74 (self-incrimination by witness) 275, 312, 313 Rule 75 (incrimination by family members) 275, 313 Rule 81 (restrictions on disclosure) 292 Rule 85 (definition of victims) 240, 241 Rule 87 (protective measures) 270 Rule 88 (special measures) 270 Rule 91 (participation of legal representatives in proceedings) 302 Rule 140 (directions for conduct of proceedings and testimony) 238, 296, 297, 298, 303 Rule 162 (exercise of jurisdiction) 311, 318, 322, 324, 331 Rule 163 (application of Statute and Rules) 312, 315, 331 Rule 164 (periods of limitation) 315, 331 Rule 165 (investigation, prosecution and trial) 315, 320, 322, 331 Rule 166 (sanctions under article 70) 316, 322, 331 Rule 167 (international cooperation and judicial assistance) 311, 328, 331 Rule 168 (ne bis in idem) 331 Rule 169 (immediate arrest) 331 Rule 217 (cooperation and measures for enforcement of fines, forfeiture or reparation orders) 316 Rule 218 (orders for forfeiture and reparations) 316 Rule 219 (non-modification of orders for reparation) 316

Index Rule 220 (non-modification of judgements in which fines were imposed) 316 Rule 221 (decision on disposition or allocation of property or assets) 316 Rule 222 (assistance for service or any other measure) 316 witnesses cost/inducement 249–251, 337 credibility/reliability 292–306 criminal sanctions 306–331, 333, 345 duties and obligations 271–277 legislative history 234–237 modes of testimony 277–292 proofing and familiarisation 251–257, 332, 336–337 protection 65, 269–271 responsibility of 271–277 right to voluntary appearance 260–266 role of 341–342 sourcing and selection 48–49, 245–249, 331–332 subpoena orders 263, 274–275, 276, 337 types of 238–245 see also Rome Statute ICC Regulation Regulation 43 (testimony of witness) 53 Regulation 44 (experts) 243, 245 Regulation 54 (status conferences before Trial Chamber) 244 ICC Regulations of the Office of the Prosecutor Regulation 43 (compensation for expenses) 250 Regulation 401 (conduct of questioning) 250 ICC Regulations of the Registry Regulation 52 (presentation of evidence during a hearing) 301 Regulation 80 (services to victims and witnesses) 249 ICTR (International Criminal Tribunal for Rwanda) 38 commitment to cosmopolitan principles 144, 191, 193

407 cooperation with States 150–153 credibility of 192 Prosecutor v. Akayesu, credibility/reliability of witnesses 170, 193, 230 cultural/linguistic divergences 175, 176, 177 definition of rape 54–55, 145 false testimony 184 live-testimony 160 Prosecutor v. Bagilishema 165, 170, 193 Prosecutor v. Bagosora 162, 179, 181, 190, 191 Prosecutor v. Bizimungu 146–147, 150, 165 Prosecutor v. GAA 187–189, 192 Prosecutor v. Gacumbitsi 154 Prosecutor v. Kajelijeli 169, 176, 178, 191 Prosecutor v. Kalimanzira 164, 170, 176 Prosecutor v. Kamuhanda 180, 186, 187, 192 Prosecutor v. Karemera 146, 149, 153, 163, 166, 180, 191, 198 Prosecutor v. Karera 165 Prosecutor v. Kayishema 147, 191 Prosecutor v. Muhimana 172 Prosecutor v. Musema 168, 173 Prosecutor v. Muvunyi 181 Prosecutor v. Nahimana 147, 175 Prosecutor v. Ndindiliyiama 161 Prosecutor v. Ngirabatware 183 Prosecutor v. Niyitegeka 157 Prosecutor v. Nshogoza 164, 187 Prosecutor v. Ntakirutimanaet 168 Prosecutor v. Nyiramasuhuko 152, 182 Prosecutor v. Rutaganda 175, 184, 185, 186, 230 Prosecutor v. Rwamakuba 169, 177, 189, 190, 191, 340 Prosecutor v. Semanza 145, 172, 179, 191 Prosecutor v. Serushago 148 Prosecutor v. Simba 152, 160, 174, 185 Rules of Procedure and Evidence 175 Rule 34 (Victims and Witnesses Unit) 158 Rule 54 (general rule, orders and warrants) 161, 179, 180, 181 Rule 66 (disclosure by prosecutor) 161, 162, 163

408 ICTR . . . (cont.) Rule 67 (reciprocal disclosure) 174 Rule 68 (disclosure of exculpatory evidence) 150, 170 Rule 69 (protection of victims and witnesses) 156, 158 Rule 71 (depositions) 160, 161 Rule 75 (protection of victims and witnesses) 156, 158 Rule 77 (contempt of the Tribunal) 154, 181–182, 186, 187 Rule 85 (presentation of evidence) 171 Rule 89 (general provisions, rules of evidence) 153, 162, 163, 164 Rule 90 (testimony of witnesses) 159, 160, 162, 163, 165, 167, 183 Rule 91 (false testimony under solemn declaration) 159, 183, 184, 185, 186, 187 Rule 92 bis (confessions) 161, 162, 184 Rule 94 bis (testimony of expert witnesses) 146, 165, 166 Rule 95 (exclusion of evidence on grounds of means by which obtained) 154 Rule 98 (power of Chambers to order production of additional evidence) 179 Rule 101 (penalties) 186–187 Statute Article 18 (review of indictment) 150 Article 19 (commencement and conduct of trial proceedings) 163 Article 20 (rights of accused) 163 Article 21 (protection of victims and witnesses) 156 Article 23 (penalties) 186–187 Article 28 (cooperation and judicial assistance) 150, 152, 181 witnesses cost/inducement 148–150 credibility/reliability 163–175 criminal sanctions 181–190, 192 duties and obligations 159–160, 178–181 modes of testimony 160–163 proofing and familiarisation 153–154, 336

Index protection 154–159 sourcing and selection 144 types of 144–148 Witness and Victims Support Section 148, 158 ICTY (International Criminal Tribunal for the former Yugoslavia) 38 commitment to cosmopolitan principles 140, 141 cooperation with States 82–83, 127 Prosecutor v. Aleksovski 102, 107, 115, 128 Prosecutor v. Blagojevic et al. 77 Prosecutor v. Blaskic 93, 107, 123, 133, 259 Prosecutor v. Brdanin 125, 129 Prosecutor v. Bulatovic 130, 131, 132, 141 Prosecutor v. Delalic et al. 90, 106, 127 Prosecutor v. Furundzija 118 Prosecutor v. Galic 95, 121 Prosecutor v. Gotovina et al. 76, 91 Prosecutor v. Hadihasanovic 109 Prosecutor v. Halilović 111, 122, 181 Prosecutor v. Haradinaj et al. 84 Prosecutor v. Jokic 88, 130–131, 132–133, 141 Prosecutor v. Karadzic et al. 82, 100, 105–106 Prosecutor v. Kordic 103, 107 Prosecutor v. Krajisnik 104–105, 141 Prosecutor v. Krstic 122, 123, 125, 141 Prosecutor v. Kupreskic 80, 108, 136–137 Prosecutor v. Limaj et al. 84, 96, 110, 118 Prosecutor v. Lukic 139–140 Prosecutor v. Mejakic 95 Prosecutor v. Milosevic 83, 101, 102, 108, 116–117, 117–118, 123, 131 Prosecutor v. Milutinovic et al. 84, 85, 103 Prosecutor v. Mrksic et al. 108, 111 Prosecutor v. Naletilic 92, 111–112 Prosecutor v. Perisic 96, 109 Prosecutor v. Petkovic 133–134, 141 Prosecutor v. Popovic et al. 78–79, 113 Prosecutor v. Prlic 112–113, 136, 209 Prosecutor v. Seselj 100, 133–134 Prosecutor v. Simic 111, 124 Prosecutor v. Stanisic et al. 85, 91, 106, 112, 121 Prosecutor v. Tabaković 139–140, 142 Prosecutor v. Tadic 73, 79, 127–128, 137–138, 158, 339 Prosecutor v. Tolimir 105

Index ICTY . . . (cont.) Rules of Procedure and Evidence 78 Rule 2 (definitions) 82 Rule 34 (victims and witnesses section) 86 Rule 54 (general rule, orders and warrants) 86, 122–123, 125 Rule 58 (national extradition provisions) 82 Rule 65 ter (pre-trial judge) 139 Rule 68 (disclosure of exculpatory and other relevant material) 113 Rule 69 (protection of victims and witnesses) 86 Rule 70 (matters not subject to disclosure) 82–83 Rule 71 (depositions) 92 Rule 75 (measures for protection of victims and witnesses) 86 Rule 77 (contempt of tribunal) 125, 126–129, 130–134, 139 Rule 81 bis (proceedings by videoconference link) 90 Rule 89 (general provisions rules of evidence) 113 89(B) 99 89(C) 88, 89, 95, 97, 100, 109, 110, 115–116, 117–118, 120 89(D) 89, 95 89(F) 110 Rule 90 (testimony of witness) 87, 88, 105, 106–107, 111, 114, 137, 140–141 Rule 91 (false testimony under solemn declaration) 127, 136, 138, 139, 140, 141 Rule 92 bis (admission of written statements and transcripts) 93, 94–98, 109–110, 117, 119, 121, 137 92 bis(A) 94, 95 92 bis(B) 98 92 bis(C) 96 Rule 92 quater (unavailable persons) 98, 100, 137 Rule 92 ter (other admission of written Statements and transcripts) 96 Rule 94 bis (testimony of expert witnesses) 77, 119–120, 121 Rule 94 ter (deleted) 93

409 Rule 96 (evidence in cases of sexual assault) 118–119 Rule 98 bis (judgement of acquittal) 101–102, 122 Rule 101 (penalties) 129 Rule 115 (additional evidence) 108, 109, 124 Statute Article 15 (rules of procedure and evidence) 127 Article 24 (penalties) 129 Article 29 (cooperation and judicial assistance) 82, 127, 133 witnesses authority over 141 cost/inducement 80–81 credibility/reliability 101–106 criminal sanctions 126–140 duties and obligations 87–89, 121–125 modes of testimony 89–101 proofing and familiarisation 84–85, 336 protection 85–87 sourcing and selection 74–75 statistics 75 types of 75–80 idealism, realism v. 21 ILC Draft see Rome Statute ILC (International Law Commission) 235–236 see also Prepcom immunity from prosecution 86, 157–158, 196–197, 224 impeachment of own witnesses 113–114 imprisonment 87, 129, 137, 181, 187, 227, 228, 261–262, 272, 316, 325, 326, 327 in absentia proceedings 135 incentives to testify 64–66, 73–74 inconsistent statements see prior-statements/ prior-inconsistent statements individualism 19 insider-witnesses ICC 238 ICTR 148 ICTY 75, 80 payment of 199–200 SCSL 196–197, 199–200, 204, 232 institutional/legal cosmopolitanism 30 moral cosmopolitanism v. 31–33

410 institution building/design 33–34 intermediaries 331–332 corruption and false testimony 64, 249–250, 256, 299, 316, 318–321, 336 from international and local organisations 74, 245–246 selection 246 international cooperation see state cooperation international crime, historical record 53–54 International Criminal Court see ICC International Criminal Tribunal for the Former Yugoslavia see ICTY International Criminal Tribunal for Rwanda see ICTR international law effect on state behaviour 22–23, 24 role of witnesses in developing 54–55 International Law Commission (ILC) 235–236 see also Prepcom Islam, false testimony in 60 Italy, on pre-recorded testimony 281 Itoe, Benjamin Mutanga 225 Japan on ICC jurisdiction 310 on modes of testimony 279–280 Jones, John 313 Judaism, false testimony in 60–61 judges duties and responsibilities 6, 71, 79 fact-finding role 6, 52, 338 justification of punishment 69 questioning of witnesses 303–304 judicial assistance see state cooperation Kant, Immanuel 13–16, 36 Karton, Joshua 177 Kelsall, Tim 218, 231 Kenya, judicial cooperation with ICC 325–326 Klip, André 7, 126 knowledge, connection between power and 26–27 Kress, Claus 55, 234–235, 238 Kwon, O-Gon 108, 131 language interpretation 176–177, 220, 304–305

Index legal cosmopolitanism 30 relation to political cosmopolitanism 32–33 legality, moral dimension of 67–68 legal representatives of victims, questioning of witnesses 301–303 legitimacy of ICC, moral 50–51, 346 liberal cosmopolitanism 13 live-testimony 89–90, 160, 206–207, 254, 282, 283–285, 295 McClelland, Gregory 79 McGowan Davis, Mary 169 Al-Maini, Doug 18 Marxism 25–26 mens rea 130, 131, 132, 134, 226, 230 Mill, John Stuart 67 misconduct before court 306, 308, 312, 329–331 see also contempt of court modelling of witnesses ICC 238–245 ICTR 144–148 ICTY 75–80 SCSL 195–198 Model Treaty on Mutual Assistance in Criminal Matters (UN) 260 Moellendorf, Darrel 56 moral cosmopolitanism 17, 58–61, 343 legal/institutional cosmopolitanism v. 31–32 morality legal dimension of 67–68 role/place in international affairs 21 moral values, shared 42–45 motivation to testify 64–66 moral obligations 73–74 Murphy, Sean 135 mutatis mutandis 86, 137, 183 Netherlands, The, on ICC jurisdiction 310, 311 New Zealand, judicial cooperation with ICC 265 NGO’s 44–45, 245 normative cosmopolitanism 3, 30, 42 Norway, judicial cooperation with ICC 327 Nshogoza, Leonidas 187 Nussbaum, Martha 11, 17

411

Index oath see solemn declaration obligations, shared/mutual 45–49 obligations of witnesses see duties and obligations of witnesses Opacic, Dragan 138–139, 142, 339 oral evidence see live-testimony oral statements, written statements v.  97, 110 oral testimony see live-testimony penalties see sanctions on witnesses perjury see false testimony persons in custody 261–262 Pierek, Roland 5, 35–36 Piragoff, Donald 54 pluralist theory 24–25 Pogge, Thomas 13, 16, 19–20, 31 Poland, on ICC jurisdiction 310 political cosmopolitanism 42 relation to legal cosmopolitanism 32–33 postmodernism 26–28 power connection between knowledge and 26–27 division of 23, 24 Powles, Steven 313 preliminary examinations 49 Prepcom 236–237 on functions and powers of Trial Chamber 271–272 on modes of testimony 278 on sanctions 308 on State cooperation 258 see also Rome Statute pre-recorded testimony 281, 287–289, 300 prima facie case of contempt 182 prior-statements/prior-inconsistent statements 109–115, 168–171, 213–216, 218–219, 304 privilege witnesses 222, 224 proofing of witnesses by ICC 251–257, 332, 336–337 by ICTR 153–154, 336 by ICTY 84–85, 336 by SCSL 202–203, 336 prosecution, selective 46–47 prosecution of witnesses see sanctions on witnesses

protection of witnesses by ICC 65, 269–271 by ICTR 154–159 by ICTY 85–87 by SCSL 203–205 questioning of witnesses 296–298 by judges 303–304 by legal representatives on behalf of victims 301–303 see also cross-examination of witnesses Ralph, Jason 5, 38, 40, 43 Ramaroson, Arlette 170, 176 rape 54–55, 118 Rapp, Steven 167 realism 21–24 idealism v. 21 rebuttal/rejoinder 171–172 refugees 22 reliability of witnesses 101–106, 163–164, 292–295 admissibility of expert-witness testimony 119–121 alibi 173–174 corroboration 118–119, 172–173, 216–217, 296 examination/cross-examination  106–109, 111, 165–168, 211–213, 296–301, 338 hearsay-evidence 115–118, 174–175, 217–218 prior-statements/prior-inconsistent statements 109–115, 168–171, 213–216, 218–219, 304 rebuttal/rejoinder 171–172 see also truthful testimony relocation of witnesses ICTY 81, 87 SCSL 204–205 Roach, Steven 4–5, 39, 70 Robinson, Peter 147, 167, 189 Rome Statute 3–4, 30, 38, 42–44, 51 Article 3 (seat of the court) 251, 254, 256 Article 5 (crimes within jurisdiction of Court) 308, 316, 322 Article 6 (genocide) 322 Article 7 (crimes against humanity) 322 Article 8 (war crimes) 321, 322

412 Rome Statute (cont.) Article 12 (preconditions to the exercise of jurisdiction) 268, 276 Article 17 (issues of admissibility) 307 Article 18 (preliminary rulings regarding admissibility) 307 Article 19 (challenges to jurisdiction of Court or admissibility of case) 307 Article 21 (applicable law) 259, 315 Article 26 (exclusion of jurisdiction over persons under eighteen) 308 Article 29 (non-applicability of statute of limitations) 308 Article 30 (mental element) 314–315 Article 43 (Registry) 234 Article 51 (Rules of Procedure and Evidence) 259 Article 53 (initiation of investigation) 315, 322 Article 54 (prosecutor’s duties/powers re-investigations) 6, 48, 53, 247, 270, 296, 304 Article 57 (functions and powers of Pre-Trial Chamber) 270 Article 58 (issuance of warrant of arrest or summons to appear) 307 Article 59 (arrest proceedings in custodial State) 307, 315, 322 Article 60 (initial proceedings before Court) 307 Article 61 (confirmation of charges before trial) 291, 307 Article 64 (functions and powers of Trial Chamber), 64(2) 251, 254, 256, 270 64(3)(a) 251, 254, 256, 303 64(6)(b) 260, 261, 265, 273–274, 275, 277, 285 64(6)(d) 277 64(9)(a) 292 Article 68 (protection of victims and witnesses and their participation in proceedings) 234, 241, 270, 271, 284–285, 302 Article 69 (evidence) 234, 280, 281 69(1) 6–7, 56, 62, 68, 278, 282, 314 69(2) 254, 260, 283, 284, 285, 286, 289 69(3) 6, 53, 274, 277, 298, 303 69(4) 292

Index Article 70 (offences against administration of justice) 68, 70, 277, 307, 309, 311, 313, 315, 316, 318, 320 70(1) 7, 306, 314 70(1)(a) 57, 62 70(4) 318, 322, 323, 333, 334, 340 70(4)(a) 315 70(4)(b) 310 domestic implementation 323–329 Article 71 (sanctions for misconduct before Court) 234, 306, 312, 313, 329–331 Article 75 (reparations to victims) 249, 270 Article 77 (applicable penalties) 316 Article 81 (appeal against decision of acquittal or conviction or against sentence) 315 Article 86 (general obligation to cooperate) 266 Article 87 (requests for cooperation) 270 Article 88 (availability of procedures under national law) 264 Article 90 (competing requests) 258 Article 93 (other forms of cooperation) 248, 258 93(1) 234 93(1)(e) 238, 257–258, 260, 261, 275–276 93(1)( f ) 261 93(1)( j) 270 93(1)(l) 266, 274 93(7)(a)(i) 261–262 Article 97 (consultations) 267 Article 103 (role of States in enforcement of sentences of imprisonment) 311, 312 Article 107 (transfer of person upon completion of sentence) 312 Article 109 (enforcement of fines and forfeiture measures) 311, 312 Article 110 (review by Court on reduction of sentence) 270 Article 111 (escape) 312 Draft Statute, Article 38 271–273 Article 43 280 Article 44 278, 280 Article 47 312 Article 48 306

Index Article 54 281 Article 56 281 Article 118 280 Article 122 279 legislative history 234–237 Preamble 42 Prepcom 236–237, 258, 271–272, 278 on selection decisions 47–48 Rules of Procedure and Evidence (RPE) see ICC; ICTR; ICTY; SCSL Rutledge, Kristina 79, 112 sanctions on witnesses 5, 7 case law 129–140 contempt of court 126–133, 181–183, 187, 226–228, 313 false testimony 7, 12, 57, 59–62, 66, 68–69, 307, 314–316, 339–341, 344–345 ICC case law 316–321 ICTR case law 187–190 ICTY case law 137–140, 142 SCSL case law 228–231 fines 87, 129, 137, 181, 187, 228, 316 ICC 306–331, 333, 345 ICTR 181–190, 192 ICTY 126–140 imprisonment 87, 129, 137, 181, 187, 227, 228, 261–262, 272, 316, 325, 326, 327 misconduct before court 312, 329–331 period of limitation 316 refuse to answer questions 129–133 SCSL 226–231 state cooperation 322–329 subpoena 133–135, 179, 180–181, 220–224 Schabas, William 103, 276 SCSL (Special Court for Sienna Leone) commitment to cosmopolitan principles 232–233 cooperation with States 222 Headquarters Agreement, Article 1 (interpretation) 197 Article 15 (privileges and immunities of Sierra Leonean and international personnel) 197 Practice Direction of Allowances for Witnesses and Expert Witnesses 199 Article 1 (definitions) 195 Prosecutor v. Brima 210, 215, 217, 219, 222–223, 226

413 Prosecutor v. Fofana et al. 210, 217, 219, 220 Prosecutor v. Gbao 203 Prosecutor v. Kondewa (CDF case) 218 Prosecutor v. Norman et al. 197, 205, 206, 208, 211, 215, 220, 231, 232 Prosecutor v. Sesay 195, 202, 213, 219, 228, 230, 231 Prosecutor v. Taylor 194 corroboration 216, 231 cost/inducement 199, 201, 202 cross-examination 212 expert-witnesses 197, 198 insider witnesses 196 protection 205 subpoena 221–222, 232 video-link testimony 207 written statements 208, 209 Rules of Procedure and Evidence, Rule 8 (requests and orders) 222 Rule 34 (Witnesses and Victims Section) 204 Rule 39 (conduct of investigations) 200, 201 Rule 54 (general provisions, orders and warrants) 195, 220–221 Rule 68 (disclosure of exculpatory evidence) 201, 214 Rule 69 (protection of victims and witnesses) 203 Rule 70 (matters not subject to disclosure) 222–223, 225 Rule 71 (depositions) 195, 207 Rule 73 bis (pre-trial conference) 205 Rule 75 (measures for the protection of victims and witnesses) 203 Rule 77 (contempt of Special Court or Residual Special Court) 226–227, 228, 229 Rule 78 (open sessions) 203 Rule 79 (closed sessions) 203 Rule 85 (presentation of evidence) 195, 206, 207, 211 Rule 89 (general provisions, rules of evidence) 208, 209, 210, 213, 217 Rule 90 (testimony of witnesses) 206, 228 Rule 91 (false testimony under solemn declaration) 228, 229

414 SCSL . . . (cont.) Rule 92 bis (alternative proof of facts) 208, 212, 216 Rule 92 quater (deceased persons) 208, 209, 216–217 Rule 94 bis (testimony of expert witnesses) 197 Rule 95 (exclusion of evidence) 210 witnesses, barriers to understanding and assessing testimony 218–220 cost/inducement 199–202 credibility/reliability 209–218 criminal sanctions 226–231 duties and obligations 205–206, 220–225 modes of testimony 206–209 proofing and familiarisation  202–203, 336 protection 203–205 relocation 204–205 sourcing and selection 194–195 types of 195–198 Witness Management Unit 200–201, 202 Witness and Victim’s Section 195, 201, 204 selection decisions 47–49 selection of witnesses see sourcing and selection of witnesses selective prosecution 46–47 self-interest/national interest of States 21 self-interest of witnesses 65–66 sexual violence 54–55, 118 Shahabuddeen, Mohammed 122–123 shared moral values 42–45 shared/mutual obligations 45–49 single society concept 42–45 Sluiter, Goran 1, 65, 158, 259, 274, 275, 276, 312 solemn declaration 56–57, 136–137, 142, 159, 184, 206, 314 child witnesses 87–88, 282–283 see also false testimony; truthful testimony sourcing and selection of witnesses 336–337 by defense 246 by ICC 48–49, 245–248, 331–332

Index by ICTR 144 by ICTY 74–75 by SCSL 194–195 see also intermediaries South Africa on ICC jurisdiction 312 judicial cooperation with ICC 264 Spain, judicial cooperation with ICC 265 Special Court for Sierra Leone see SCSL state-centrism 23 State cooperation binding authority of UNSC 267–268 with ICC 257–269, 272, 322–329 appearance before court 260–266, 272–279 domestic implementation Article 70 323–329 false testimony 307 general obligation to cooperate 266–269 on sanctions to witnesses 311 subpoena powers 259, 263, 274–275 with ICTR 150–153 with ICTY 82–83, 127 with SCSL 222 State obligations 29 assistance in collection of evidence  262 financial obligations 81 general obligation to cooperate with ICC 266–269, 328 implementation of cooperation regime 264 States, cosmopolitan consciousness of 39 State sovereignty 14, 15, 24, 26–27 United States 43 Steiner, Sylvia 285 Stoics 12–13, 17, 341 Stover Witness Report 136 subpoena orders 122–125, 178, 179, 180 ICC jurisdiction/power 263, 274–275, 276, 337 ICTR case law 179, 180–181 ICTY case law 133–135 SCSL case law 220–222 state cooperation 259 Sweden, judicial cooperation with ICC 264, 265, 279

Index Switzerland, judicial cooperation with ICC 327 Syrian civil war 22 Tabaković, Zuhdija 139–140, 142 Terrier, Frank 63, 282 testimony alibi testimony 173–174 assessment of 175–178, 218–220 credibility/admissibility 292–295 ex-parte communication 105 fitness to testify 88–89 modes of, audio technology 280–281, 286 deposition 92, 160, 207 evidence via electronic means 286–287 ICC drafting process on 277–292 live-testimony 89–90, 160, 206–207, 254, 282, 283–285, 295 pre-recorded testimony 281, 287–289, 300 video-link testimony 90–91, 161, 207, 280–281, 286 witness summaries (Confirmation Hearing) 291–292 written statements/transcripts 93–101, 161–163, 208–209, 289–291 motivation to testify 64–66, 73–74 relevance of 292–295 see also credibility of witnesses; evidence; false testimony; truthful testimony tolerance 18–19 traditional cosmopolitanism, contemporary v. 14 transcripts 93–101, 161–163, 208–209, 289–291 translation discrepancies 176–177, 220, 304–305 Treaty of Rome see Rome Statute trust 345 truthful testimony 3, 5, 7, 11–12, 53, 54, 344, 345 child witnesses 87–88 duty to 56, 59, 87–89, 159–160 reasons of failure 62–63 see also credibility of witnesses; false testimony

415 Uganda, judicial cooperation with ICC 326 unavailable witnesses 98–101 UN Charter, Chapter VII (embargos/ diplomatic isolation) 83 UN General Assembly Resolution 49/53 236 Resolution 50/46 236 UN High Commissioner for Refugees (UNHCR) 152 United Kingdom, judicial cooperation with ICC 326–327 United Nations Security Council (UNSC) 83 Resolution 955 150–151 Resolution 1431 151 Resolution 1688 222 United States cooperation with ICC 268, 279 on ICC jurisdiction 307 opposition and support to ICC 43–44 universalism 7 universalism of justice and scope 58 universality 19 universal jurisdiction 41 UNSC (United Nations Security Council) 83, 267–268 unsworn statements 113 Van den Wyngaert, Christine 247 VCLT see Vienna Convention on the Law of Treaties victims, definition 240 Victims and Witnesses Unit (VWU, ICC) 65, 252, 270 Victims and Witness Section (VWS, ICTY) 81, 86–87 victim witnesses see crime-based witnesses video-link testimony 90–91, 161, 207, 280–281, 286 Vienna Convention on the Law of Treaties (VCLT), Article 31 (general rule on interpretation of treaties) 235, 323–329 Voltaire 13 voluntary appearance of witnesses 260–266 vulnerable witnesses see crime-based witnesses VWS (Victims and Witness Section, ICTY) 81, 86–87 VWU (Victims and Witnesses Unit, ICC) 65, 252, 270

416 Wald, Patricia 1, 101, 102–103, 121 Werner, Wouter 5, 35–36 witnesses compellability of 223–224, 272, 312–313 cost/inducement 80–82, 148–150, 199–202, 249–251, 337 definition 1, 195, 238 examination/cross-examination  106–109, 111, 165–168, 211–213, 296–301, 338 experts v. 238 importance and role 52–55, 341–342 protection 65, 85–87, 154–159, 203–205, 269–271 relocation 81, 87, 204–205 right to voluntary appearance 250, 260–266 sourcing and selection 48–49, 74–75, 144, 194–195, 245–248, 331–332, 336–337 types of 75–80, 144–148, 195–198, 238–245, 336 unavailable persons 98–101 see also child witnesses; credibility of witnesses; duties and obligations of

Index witnesses; proofing of witnesses; sanctions on witnesses witnesses in custody 261–262 witness protection programme 65 witness summaries (Confirmation Hearing) 291–292 Witness and Victim’s Section (WVS, SCSL) 195, 201, 204 Witness and Victims Support Section (WVSS, ICTR) 148, 158 Working Group on Procedural Matters 309 written statements 93–101, 161–163, 208–209, 289–291 cross-examination 96, 162, 163 oral statements v. 97 WVSS (Witness and Victims Support Section, ICTR) 148, 158 WVS (Witness and Victim’s Section, SCSL) 195, 201, 204 young offenders 308–309 Zahar, Alexander 189, 275 Zutphen draft (Prepcom) 307–308