The future of witness preparation at the International Criminal Court
The future of witness preparation at the International Criminal Court
1076923320301In what ways can the ICC come to a unified application of the practice of witness preparation?
0In what ways can the ICC come to a unified application of the practice of witness preparation?
Supervised by Craig Eggett
Number of words:
Table of contents
List of Abbreviations…………………………………………………………………..………5
Understanding the break with the long-standing tradition of the international criminal tribunals and the evolution of the practice at the International Criminal Court………….8
The practice of witness preparation at the international criminal tribunals and the break with the tradition in the Lubanga case………………….………………………..8
The evolution from Lubanga to the Kenyan cases……….………….………….……11
There is no reason to depart from the long-standing legal tradition of witness preparation developed in the international criminal tribunals……………….………..13
Proofing is not coaching………………………………………………………13
No successful challenge of the practice of witness proofing at the international criminal tribunals…………………………………………………………….13
The procedural frameworks of the tribunals and of the Court are not so different……………………………………………………………………….14
Putting an end to the ever-going conflict between inquisitorial and adversarial systems and its influence on the Court’s rules and procedures……………………………….16
The influence of adversarial and inquisitorial criminal law systems on the Court’s rules and procedure………………………………………..………………………16
Beyond the adversarial-inquisitorial conflict: A unique application of witness preparation through Jackson’s and Bruger’s “Principled Pragmatism” approach…18
Principle 1: The well-being of the witness……………………….……………19
Principle 2: The integrity of the evidence…………………………….………19
Remedying the lack of legal basis under Article 21 of the Rome Statute – The Specific Scenario of the Protocols………………………………………………….…………22
Analysis of Article 21 of the Rome Statute – What possible legal basis for the practice?…………………………………………………………………………………………………..23
Article 21(1)(a): The Statute, the Elements of Crimes and the Rules of Procedure and Evidence
Article 21(2)(b): Applicable Treaties and Principles and Rules of International law
Article 21(3)(c): General Principles derived from National Laws of Legal Systems of the World
The specific situation of the Protocols – step forward or failed attempt?……….
List of Abbreviations
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
Familiarization Protocol Victims and Witness Unit’s Unified Protocol on the practices used to prepare and familiarize witnesses for giving testimony at trial, ICC-01/05-01/08-972 and public Annex, ICC-01/05-01/08-972-Anx (22 October 2010)
PTC Pre-Trial Chamber
Rome Statute/ ICC Statute The Rome Statute of the International Criminal Court
RPE Rules of Procedure and Evidence
SCSL Special Court for Sierra Leone
TC Trial Chamber
VWU Victim and Witness Unit
Witness Preparation Protocol Witness Preparation Protocol adopted in case No. ICC-01/09-01, ICC-02/05-03/09
Since its creation in 2002, the International Criminal Court endorsed, through the Rome Statute, the function of prosecuting the most serious or grave atrocities and therefore, Article 1 of the ICC Statute provides that the Court shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, namely genocide, crimes against humanity, war crimes and crime of aggression. In order to function effectively, the Court relies extensively on direct witness testimony. Article 69(1) of the Rome Statute provides for the principle of orality, which requires that the witnesses must testify in person unless certain exceptions apply.
Besides being of special importance to the truth-seeking function of the Court, witnesses remain vulnerable persons in need of protection and guidance and it has even been said that witnesses have become the International Criminal Court’s Achilles’ heel. Indeed, in many cases before the Court, witnesses have been tampered or even murdered in hope that their testimony will not impinge on either the prosecution’s dossier or the defendant’s defense.
In the UN international criminal tribunals, the practice of witness preparation has been commonly applied for years and consists of allowing parties to meet with their witnesses to review their evidence shortly prior to giving testimony, which it is said to ideally facilitate a more accurate, complete and efficient testimony. However, the ICC took a drastic turn in the Lubanga case by prohibiting the practice and thus breaking with the legal tradition developed in the international criminal tribunals. Alongside this prohibition, the Trial Chamber developed the Witness Familiarization Protocol, detailing the activities to be carried out by the Victim and Witness Unit, a special Unit accompanying the victims and witnesses all-along their journey in The Hague. A few years later, the ICC shifted its view again by permitting the practice of witness preparation in the Kenyan cases, and ensured its regulation and control by a new Protocol.
In both case scenarios, whether the practice was allowed or not, witnesses have been let down by the Court, either because they felt non-fully prepared before testifying to such atrocities, or because there was no actual enforcement or regulation of the practice, putting them in vulnerable places in the hands of the parties.
This thesis aims at proving that the practice of witness preparation is needed at the International Criminal Court and that it should be regulated in a consistent manner, and therefore will answer the following question: In what ways can the ICC come to a unified application of the practice of witness preparation?
In order to find the solutions to have a predictable and transparent legal system which guarantees that the law will not be used in an arbitrary way, as required by the principle of legal certainty, this thesis will be divided in three main parts. Part II will demonstrate that there is no reason to depart from the long-standing legal tradition of witness preparation developed in the international criminal tribunals. Part III will develop on the argument that international legal traditions exist and argue that international criminal law should be a unique system of law and not an ideal mix of adversarial and inquisitorial systems and therefore have its own unique and consistent approach towards witness preparation. Finally, Part IV will seek for a legal basis for the application of a unique system of witness preparation at the ICC and take a look at the status and force of the Protocols in this regard.
Understanding the break with the long-standing tradition of the international criminal tribunals and the evolution of the practice at the International Criminal Court “Witness preparation” is a term used in the field of law which defines any interaction with a witness prior to a trial. However, both domestic and international criminal tribunals and court have used different terms to describe and regulate the process of witness interaction with parties prior to trial. The term “witness preparation” and “witness proofing” are often interchangeably used between the cases, and it is even said that “it does not matter what you call it, whether it is witness proofing or witness preparation, but rather the issue is what you do and how far we can go”. Therefore, even though this thesis is centered on the term “preparation”, for the sake of the integrity of information, the original terms used by the tribunals and courts in their judgment will be kept, whether it is “proofing” or “preparation”. The choice for the term preparation in the entirety of the thesis is, however, mostly caused by the fact that the term “proofing” has always been given a negative meaning, compared to the term “preparation”.
In this section, we will first have a look at the practice of witness preparation at the ad hoc tribunals and the Special Court for Sierra Leone (SCSL) and the reasons for the break with this practice in the Lubanga case. Then, the evolution of the practice of witness preparation at the ICC shows a come back to the long-established practice of the international criminal tribunals with the Kenyan cases. Finally, the last part of the section will reflect on the decisions of the tribunals and of the Court and prove that there is no reason to break with the tradition of witness preparation.
The practice of witness preparation at the international criminal tribunals and the break with the tradition in the Lubanga case
Proofing at the ICTY, the ICTR and the SCSL may be simply describe as a practice referring to “a meeting held between a party to the proceedings and a witness, usually shortly before the witness is to testify to court, the purpose of which is to prepare and familiarize the witness with courtroom procedures and to review the witness’s evidence.” This description applies to the prosecution and to the defense alike. More specifically, the practice of witness proofing was defined in the Haradinaj Trial Decision as involving the following activities: informing the witness about the purpose of the trial and its procedure, including the roles of each of the parties involved and the purpose and method of examination, cross-examination and re-examination. It also includes showing the witness his/her prior statements for the purpose of refreshing recollection or showing him/her exhibits likely to be used during the witness’s testimony and questioning the witness on areas relevant to his/her testimony. Other features of the practice include the identification of the facts to the witness, examining the deficiencies in recollection when compared with each earlier statement of witness, all in an attempt to clarify the witness’s evidence.
The main feature in the interpretation of the concept of witness proofing by the ad hoc tribunals and the SCSL is that they made a distinction between “proofing”, which covers all of the activities cited above and which are permitted, and “rehearsing, practicing or coaching a witness”, which has been recognized as being a prohibited conduct. The international criminal tribunals have therefore defined what proofing is not or should not be to prohibit those negative forms or it only.
In the International Criminal Court’s very first tried case between 2006 and 2007, the Lubanga case, both the Pre-Trial and Trial Chamber rejected the prosecution request for witness proofing, and in doing so, broke with the long-standing tradition of the international criminal tribunals. The Trial Chamber noted that preparation of witness testimony by the parties could lead to a distortion of the truth, might inhibit the entirety or the true extent of an account, could come dangerously close to being a rehearsal of in-court testimony, and would ‘diminish what would otherwise be helpful spontaneity during the giving of evidence by a witness’.
This decision is also the first attempt to separate witness proofing from a new established practice, which is the practice of “witness familiarization”. This second category of measures was to be carried out by the Victim and Witness Unit, and through which witnesses can read through their statement prior to testimony, meet with the party calling them and the other party in brief meeting sessions, become familiar with the courtroom and have a psycho-social assessment. Following that decision, the Familiarization Protocol was adopted in order to provide guidance for the process of witness familiarization.
The first category of measures, labelled as witness proofing, implied “proofing in the narrow sense”, which relates to the substantive aspects of prospective and concrete testimony, purporting to aid witnesses in the process of recollection, detect deficiencies and differences with previous statements prior to testimony and disclose to the Defense any additional evidence.
While the Court found a legal basis in its Statute, Rules and Regulations for the applicability of witness familiarization in the form of positive obligations on the Court to protect the safety, physical and psychological well-being, privacy and dignity of witnesses, the Pre-Trial Chamber dismissed the Prosecution’s submission that “proofing” is an attribute of any proceedings dealing with international crimes and a “widely accepted practice”, falling under the principles and rules of international law of Article 21(1)(b), as a source of law. The Trial Chamber further held that it did not consider the procedural rules and practice of the ad hoc tribunals to be automatically applicable to the ICC without detailed analysis, and proceeded on the basis that the ICC Statute created a procedural framework which differed markedly from the ad hoc tribunals. It also pointed out to the fact that the practice wasn’t consistently applied at the tribunals and that it was challenged several times.
While the tribunals admission of this practice rests on the assumption that its advantages outweigh its risks, the ICC took the opposite view, by choosing to put the human right to safety of the witness first.
From this decision on, however, the evolution of the position of the ICC Chambers with regard to witness preparation shows a come back to the practice of the international criminal tribunals and will be looked in more details in the next section.
The evolution of the practice from Lubanga to the Kenyan cases
In 2009, in the Katanga Ngudjolo case, Trial Chamber II took the same approach towards the non-application of witness proofing and the use of the witness familiarization process instead, again under the supervision of the VWU.
A year later, it is the defense, in the Bemba case, which applied for witness proofing. The judges found “no compelling reasons to depart from the uncontroversial jurisprudence of the Court”, and therefore rejected the defense’s demand. However, Judge Ozaki dissented with the other judges’ opinion and argued that witness proofing might have a truth finding function by ensuring that a witness has a fair opportunity to tell their story and give clear, relevant, structured, focused and efficient testimonies in court. This diverging opinion is closest to the ones given by the judges vouching for the practice, at the ad hoc tribunals.
Finally, in what we call the Kenyan Cases, the prosecution requested again for a form of witness proofing to be allowed at the ICC. What they required was a more extensive witness preparation process than in the previous ICC cases (i.e. witness preparation), where the calling party meet their witness in The Hague prior to testimony to review topics likely to be covered in cross-examination, to review the witnesses’ prior statements and show them potential exhibits. Even though the defense objected the prosecution’s request, this was a strategic move as Judge Ozaki was now presiding and given her previous dissent in the Bemba case, the motion was more likely to have a positive outcome.
The Trial Chamber allowed for the practice of witness preparation and rejected the defense’s appeal on the grounds that the defense arguments failed to show that the risk of witness coaching could not be prevented or mitigated by appropriate safeguards such as the use of cross-examination. The TC also pointed out that, when properly conducted, witness preparation is not likely to result in substantive alterations to a witness’s testimony and spontaneity at trial.
One of the main safeguards taken by the Chamber was to adopt the “Witness Preparation Protocol”, which was appended as an Appendix to both decisions. This Protocol was put forward by the prosecution and sets out a list of permitted and prohibited conduct, along with the rules governing disclosure and other logistical matters.
In the adoption of this Protocol, the Court takes a closer approach to the way the practice of witness proofing (now called “preparation”) was defined at the international criminal tribunals in that it positively defined the practice as “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”, but also listed all prohibited conduct, thus giving a definition of what witness preparation is not, and thus being explicit in what is prohibited.
There is no reason to depart from the long-standing legal tradition of witness preparation developed in the international criminal tribunals
Proofing is not rehearsing, practicing or coaching
Contrary to the Lubanga Trial Chamber’s perception, proofing does not include coaching a witness in giving his or her evidence or rehearsing or practicing with a witness in, nor does it include training or tampering a witness to control or manipulate his/her testimony. It also does not include attempting to influence the content of the testimony of a witness in any way that distorts the truth.
No successful challenge of the practice of witness proofing at the international criminal tribunals
At each of the criminal law tribunals, namely, the ICTR, the ICTY and the SCSL, challenges to witness proofing have been made, mostly following the decision of the Trial Chamber of the ICC in the Lubanga case, prohibiting the practice. However, none of these challenges came through, as the Tribunals rejected them for several reasons.
At the ICTY in 2004, in the Prosecutor v. Limaj et al. case, all three accused requested to trial chamber to order that the prosecution immediately cease proofing its witness by asserting that it “coached” witnesses during proofing sessions. The chamber denied the defense’s request on two points. First, “the practice of proofing witnesses by both the Prosecution and the defense has been in place and accepted since the inception of the tribunal and is not unique to this Chamber.” Second, the Chamber also dismissed the claim that the prosecution would “coach” its witnesses, stressing that there are clear standards of professional conduct applying to them.
One week after the Luanga Pre-Trial Decision was filed, it was used by the defense counsel at the ICTY in the Prosecutor v. Milutinovic at al. case, where one of the accused, relying on one decision, moved for an immediate order to prohibit the prosecution from proofing witnesses. However, contrary to the Lubanga Pre-Trial Chamber, the Trial Chamber found that proofing was not inconsistent with the prohibition in Article 705 of the Code of Conduct of the Bar Council of England and Wales against rehearsing, practicing or coaching, relied upon by the Lubanga Pre-Trial Chamber. The Trial Chamber held that it considered the essence of proofing to be a way to enhance the fairness and expeditiousness of the trial through discussions aiming at clarifying a witness’ evidence, and did not consisted of rehearsing, practicing or coaching.”
At the ICTR, five days after the Lubanga Pre-Trial Decision, two accused in the Prosecutor v. Karemera, Kgirumpatse and Nzirorera requested an immediate order prohibiting the prosecution from any further proofing, and looking that the practice at the ICTR and the ICTY the Trial Chamber rejected the Lubanga approach and held that proofing “not only poses no undue prejudice, but is also a useful and permissible practice.” The Chamber also remarked that the defense had requested, on several occasions, to meet with the prosecution’s witnesses in order to better prepare its cross-examination, but also warned that proofing couldn’t amount to coaching, training or tampering (with) a witness. In the Appeals Chamber, the opposed approach to that adopted by the Lubanga pre-trial chamber was taken, when it affirmed the Karemera Trial Decision and held that even through the approach to witness proofing might vary greatly in national jurisdictions, this did not made the practice incompatible with the ICTR’s Statutes, its Rules of Procedure or general principles of law.
What these cases demonstrate is that, as well before as after the Lubanga case, the practice of witness proofing has remained a consistent one at the international criminal tribunals, and has been recognized, in most of them, as a legal tradition. The Kenyan cases decision to allow witness preparation thus come closer to the view taken by the tribunals.
The procedural frameworks of the tribunals and of the Court are not so different
The Trial Chamber in the Lubanga case gave three examples to illustrate the differentiated procedural framework of the ICC in comparison to the ad hoc tribunals: the requirement in Article 54(1)(a) ICC Statute that the prosecution should investigate exculpatory as well as incriminatory evidence; the unique element of victim participation and the greater intervention allowed to the Bench. However, the particular examples given by the ICC to show that it has moved away from the adversarial tribunal criminal tribunals systems are not really persuasive in illustrating that the ICC has move so far towards the civil law system that the system of witness preparation becomes inadmissible or non-transferrable.
First, it is unclear how intervention from the bench or victim participation would negate per se the need for witness preparation. It was clear from the transcript of the first session of evidence of Dieumerci, a witness in the Lubanga case, that when a witness falls apart on the stand, the bench is just at a loss as the attorneys. The Trial Chamber did not explain how those elements male the transferability of the ad hoc Tribunals’ jurisprudence on witness proofing difficult.
Second, the fact that prosecutors have to investigate exculpatory and inculpatory evidence does not appear to exclude witness preparation. In so far as it does not consist in coaching a witness and requiring that a new probative element emerging must be disclosed to the defense, but only involves the clarification of the evidence of the witness, there is no sing of inconsistencies with the “neutral” investigatory role of the prosecutor.
The most important is perhaps that despite the differences between the international criminal bodies and the ICC, there also are significant relevant similarities. Indeed, each of these bodies has jurisdiction on the same types of crimes and often rely on testimony from victims of these heinous crimes, who have had to travel far from their home to give a testimony under a legal system that is foreign to theirs.
Putting an end to the ever-going conflict between inquisitorial and adversarial systems and its influence on the Court’s rules and proceduresIn addition to breaking with the legal-tradition of witness proofing of the ad hocs because of the lack of resemblance between the procedural aspects of the tribunals and of the Court, the ICC in the Lubanga case stated that its decision was also based on the fact that the ICC took a more civil-law based direction than its fellow tribunals during its establishment. « While these tensions, between common-law and civil-law principles, were instrumental in the development of important aspects of international criminal law, it is now time to abandon the preoccupation of international criminal courts and tribunals with this dichotomy and embrace the newly created system of international criminal law as a jurisdiction in its own right. »
This section aims at showing that the adversarial-inquisitorial conflict by which the controversial approach taken by the Court is influenced, does not make very much sense. Indeed, the Court would find itself applying a more consistent practice of witness preparation if it had a unique on its own, recognizing the legal tradition already established at the Tribunals.
The influence of adversarial and inquisitorial criminal law systems on the Court’s rules and procedure
Admittedly, witness preparation is a practice accepted by common law countries only. In this in-court battle system, the adjudicator’s passivity gives the parties a primary interest in what witnesses are put on the stand and what information they are exposed to. The preparation of witnesses fits perfectly into the theatrical setting of an adversarial trial. However, this same practice would constitute an unethical or even criminal interference with the administration of justice in inquisitorial systems, where judges assume a more pro-active role in the evidentiary process. While the ad hoc tribunals embody a more adversarial approach, the ICC procedure has drifted further from the common law archetype towards a hybrid model.
This is on this basis that the PTC and TC in the Lubanga case argued that the inquisitorial-oriented procedure of the ICC did not allow for such a practice to apply. However, there is a need of defining more exactly, on the presentation of evidence, how far the ICC procedure as applied by the Court has actually drifted from an adversarial to an inquisitorial system.
First, the ICC’s procedural regime gives a large discretion in the trial chamber to determine which form of trial proceedings it will take, and in the Lubanga case itself, the trial chamber recognized the parties’ agreements on the presentation of evidence at trial, which is a very-like adversarial trial form. On this point too, Ambos had asserted that cross-examination is no common practice before an international criminal tribunal that, as the ICC, has a mixed procedure.” Given the application of cross-examination in many, if not all of the trials that occurred at the ICC, and that the ICC’s REP secure the right to question all witness to the prosecution, the defense, the trial chamber, and any party that calls the witness, this generalization has no basis. Second, in the Lubanga case, the Court referred to a recent English judgment to define the substantive part of witness preparation. There is questioning as to why a Court would cite the English judgment R. v. Momodou to make its distinction between familiarization and proofing and decide to prohibit the latter, while arguing at the same time that it takes a more inquisitorial-oriented approach.
In addition, while it is true that witness preparation is essentially unknown in the traditional civil law, the argument that there is a strict divide between common law and civil law approaches on the matter is somewhat exaggerated. Until recently, the professional codes of a number of common law countries, including England and Wales expressly took a restrictive approach towards preparation.
Given the complex reference and inter-relation of adversarial and inquisitorial systems of law in the procedure of the Court, it would seem more productive to consider the merits of witness preparation within the parameters of the actual systems in place rather than as practices necessarily connected to ideal systems.
Beyond the adversarial-inquisitorial conflict: A unique application of witness preparation through Jackson’s and Bruger’s “Principled Pragmatism” approach
Following the Kenyan Cases and the Chambers position towards witness preparation, Jackson and Bruger believe that the future of the practice finds itself beyond the simple idea of creating an ideal system mingling inquisitorial and adversarial systems. “While the practice may be viewed as a fault line between two different procedural cultures, forever destined to be subject to debate”, Jackson and Bruger explore an alternative view based on “principled pragmatism” considering whether, in the future, witness preparation is coming to be regarded as a necessary part of the ICC practice.
This approach “makes reference to the relative advantages and disadvantages of a practice by reference to how these principles can best operate in a specific system, rather than basing the reasoning on pre-existing beliefs about an ideal system.”
Jackson and Bruger believe that the arguments in the Kenyan decisions are shaped around the experience of criminal practice, rather than rooted in the need to conform to some ideal systemic preference.
Principled pragmatism is built on two guiding principles. On the one side, we have the well-being of the witness about to testify, and on the other, the integrity of the evidence to be given in court by the witness.
Principle 1: The well-being of the witness
The ICC Statute provides an elaborate framework regarding witness protection, mainly under Article 68, which imposes a mandatory duty on the Court to provide the appropriate measures for the protection of the safety, psychological well-being, dignity and privacy of the victims and witnesses. The Court must thus consider what is required to ensure the physical, emotional and psychological well-being of the range of witnesses that come before it.
The ten minutes courtesy meeting provided for in the Familiarization Protocol, developed in the Lubanga case, was considered by the Chamber as not serving its duty to take appropriate measures to protect the well-being and dignity of witnesses. In a report published by the Human Rights Center at UC Berkley based on data collected in an interview survey of 109 witnesses who had testified in the trials of Lubanga and Katanga, it was discovered that despite the familiarization process, a few witnesses still felt unprepared when they took the stand. In view of the trial Chamber in the Kenyan decisions, witness preparation can help ensure that the witness fully understand what to expect during their time in court, that they are able to communicate any concerns, and it could also help vulnerable witnesses to reduce the stress of giving testimony. Behind the reasoning of the Trial Chamber we can witness an important connection between protecting the wellbeing of witnesses and the truth-finding functions of the Chamber. Protecting the witness well-being, in addition to be an explicit mandate of the Court, it has an instrumental and intrinsic value to it as it can assist the truth-finding function of the ICC by eliciting testimony that might otherwise not be forthcoming.
Principle 2: The integrity of the evidence
With regard to the integrity of the evidence given by witnesses, the Kenyan decisions drew attention to the principle of the primacy of oral evidence established in Article 69(2) of the Rome Statute, which reads as follows: “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 …”.
This same article provides for the ICC Chambers to give considerable freedom to choose the proper way of organizing the production of evidence: they may examine witnesses on their own, even prior to interrogations by the parties, or let the parties question the witnesses without intervention from the bench. The Kenyan decisions, however, made a point in arguing that the live testimony of witnesses, elicited through questioning by the parties, participants and Chamber, is likely to constitute the most significant evidence in the case. “A witness who testifies in an incomplete, confused and ill-structure way because of a lack of preparation is of limited assistance to the Chamber’s truth finding function”.
The integrity of the evidence speaks to the circumstances that enable the witnesses to give their best evidence possible in a relevant, accurate and structured manner without being overridden or corrupted by counsel. Even though there are examples dating from Nuremberg that point out to the dangers that pre-testimonial contacts with counsel pose on the integrity of the evidence, Jackson and Bruger believe that one must acknowledge the fact that by the time the witness comes to testify at trial, they have already told their story to a variety of actors, including investigators and lawyers, they have produced written statements, and the sense of “spontaneity” is missing. Critically, integrity is not solely equated with the spontaneity of the evidence.
In supporting those claims, the Chambers of the Kenyan decisions made reference to the specific circumstances of international criminal litigation, which appear to favor witness preparation. In held that given the complexity of the crimes under the jurisdiction of the Court, the witness may have to give “complicated and delicate evidence in the courtroom”. In addition to this complexity, most witnesses do not have any experience in a courtroom, with the Court’s systems of questioning and cross-examination and they come from very diverse parts of the world, with different legal backgrounds. Witnesses testifying before this Court will have to give evidence on events which, given the length of the proceedings, happened many years ago. Given all these factors, there is an increased likelihood that witnesses will give incomplete, ill-structured or confused testimony.
Jackson and Bruger also support the argument of the Chambers that due to some poor ways in which many witness statements had been prepared, preparation could clarify whether in fact a witness statement was going to be useful at trial. What is useless for one party, however, may be useful for another. In addition to filtering out non-useful witnesses, witness preparation can enable new facts to be revealed and “will-sat” statements to be disclosed to the other parties so that an opportunity is given to them to make use of a witness the prosecutor has found useless.
This new “principled pragmatism” approach also supports that witness preparation is needed at the ICC. Unlike the arguments for and against the practice that have been given by both international criminal law tribunals and the ICC in some of their judgments based on whether they apply a more adversarial or inquisitorial system, this approach is focused on the articulation of two main principles of the Rome Statute and on the specific circumstances of international criminal procedure. As put forward by the Trial Chamber in the Kenyan cases, given the costs of truth finding when witnesses are required to take the stand cold, any spontaneity lost in the course of witness preparation is considerably outweighed by the gains of preparation. This “principled pragmatism” approach may help mitigate the kind of systemic arguments which, it has been suggested, have not helped towards finding consensus.
However, this approach also recognizes that witness preparation can be abused, and that control and safeguards are needed. As will be analyzed in greater details in the next section, the Witness Preparation Protocol is a good step forward, but given its limited applicability, there is still uncertainty about the way the other chambers will apply the practice of witness preparation.
Remedying the lack of legal basis under Article 21 Rome Statute – The Specific scenario of the Protocols As we have seen in the previous section, the ideological shadows of the common law and civil law traditions have tended to become of important influence on the international criminal law substantive and procedural aspects. The ad hoc tribunals have adopted a common law approach towards which practices may be permitted as the dominant question regarding whether a practice is lawful or not is whether there is a rule prohibiting it, while conversely, the ICC has adopted a much more civil law approach towards procedural developments requiring that there be a positive legal basis for the reasoning.
This is the reason why, even though the practice of witness preparation never was a matter dealt by the legislators at the international criminal tribunals, the practice was still applied consistently as there was no rule prohibiting it. However, the ICC has always sought for a legal basis to justify either the prohibition, or the authorization of the practice.
As concluded in the previous section, any system of witness preparation, being either a unique one or one based on domestic legal systems, control and safeguards are needed. First because the practice of witness preparation can be abused, and second, because in the areas neglected by legislators and left to the discretion of the judges, u-turns in what has formerly been accepted as established practice are hardly foreseeable and more likely. This would go against the principle of legal certainty which would require that any witness coming to the Hague to testify knows what process he is going to get through to prepare for testimony. In the first section, each of the applicable law covered by article 21 of the Rome Statute will be look into and the possibility for the practice to fall under one of them will be analyzed. Secondly, the Familiarization Protocol and the Witness Preparation Protocol will be looked into greater detail in order to understand what their nature and legal status are and why they constitute at the same time, a great step forward but also a failed tentative.
Analysis of Article 21 of the Rome Statute – What possible legal basis for the practice?
Under the Rome Statute, Article 21 provides for an exhaustive list of the sources of law to be applied by the Chambers of the Court and consists of a feature which makes the institution a unique one. The provision was included in the ICC statute in order to create a transparent, slid and predictable legal regime to deal with lacunae, while also avoiding the risk of judicial law-making. It provides for a hierarchy of sources, which every subsequent source to be applied in a complementary fashion.
“In the first place”, the Court shall apply the Statute, the Elements of Crimes and its Rules of Procedure and Evidence; “in the second place”, applicable treaties and principles and rules of international law, including the established principles of the international law of armed conflict; and “failing that” the general principles of law derived by the Court from national laws of legal systems of the world.
The second paragraph of Article 21 states that the Court may apply principles and rules of law as interpreted in its previous decisions, and paragraph three requires the application and interpretation of law to be consistent with internationally recognized human rights and be without any sort of distinction or discrimination. The discretion left to the Court under Article 21(2) of the ICC Statute to apply its case-law will be looked into more detailed with regards to the Protocols, but it is certainly a factor that makes it wanted to find a legal basis for the practice of witness preparation in the applicable law of the Court. Indeed, while the Chambers in Katanga Ngudjolo and Bemba relied on the decisions taken in Lubanga, Trial Chamber V ignored the previous cases and re-established the practice of witness preparation.
Article 21(1)(a): The Statute, the Elements of Crimes and the Rules of Procedure and Evidence
The Rome Statute, the Elements of Crime and the Rules of Procedure and Evidence are the legal sources that the Court should apply in the first place, but the article doesn’t clearly settle the hierarchical relationship between those sources of law. With regard to the Statute and the RPE, Article 51(5) of the Statute and case-law affirm that in the event of a conflict between the two, the Statute shall prevail and that the RPE cannot be interpreted as to narrow the scope of the Statute. With regard to the Elements, it is disputed whether they only have an assisting role in applying the Statute provisions or if they are to be applied unless they provide an irreconcilable contradiction with the Statute. Even though they are not cited in Article 21(1)(a) of the Statute, supplementary legal texts can be considered as sources of law under this provision. The Regulations of the Registry are subject to the Regulations of the Court, which are themselves subject to the REP, subject to the Statute.
Much of the reasoning in the Lubanga Chambers was whether there was anything in the Rome Statute or in the REP which might be construed as authorizing witness proofing. Article 21 of the Statue served as the main legal authority for both the Pre-Trial Chamber and the Trial Chamber to prohibit witness proofing. With the division between familiarization and proofing, the TC addressed the possible legal basis for both practice.
In relation to familiarization, the Court recognized that although the term was not used in the Statute and the Rules, the measures comprise in this practice are covered by a multitude of provisions and include the norms laying down the obligations of the Court to protect the safety, physical and psychological wellbeing, privacy and dignity of the witness, as well as those regulating the mandate of the VWU.
In relation to witness proofing, the TC concluded that the practice was not covered by any provision in the Statute, Rules or Regulations. Indeed, neither the Statute nor any of the additional instruments contain an explicit provision on the preparation of witness, except for those provisions refereeing to expert witnesses. This compelled he Court to revert straight away to the analysis of a potential legal basis in the “external sources” under Arts. 21(1)(b) and (c), which will be developed later on.
However, in the Kenyan decisions, Trial Chamber V took what is seen as a more “permissive” approach towards the interpretation of the legal framework of the Rome Statute by endorsing the practice, and therefore, asking whether there is a legal basis for witness preparation.
The judges found that Articles 64(2) and (3)(a) provide ample authority for the Chambers to adopt a case-specific approach to the issue of witness preparation. The broadly drafted Art. 64(3)(a) holds that upon assignment of a trial to ta Trial Chamber, the Trial Chamber shall confer with the parties and adopt such procedures that are necessary to facilitate the fair and expeditious conduct of the proceedings, while also have full respect for the rights of the accused and due regard for the protection of victims and witnesses under Art.64(2).
The Kenyan decisions’ appreciation of Article 64(2) and (3)(a) of the ICC Statute as a legal basis for the practice of witness preparation is a positive acknowledgment that the practice is recognized in the procedural mechanism of the Court. However, the case-by-case approach to the issue of witness preparation that this system proposes, is maybe not enough.
Article 21(1)(b): applicable treaties and principles and rules of international law
The aim of the ICC’s internal legal sources is to establish the legal framework according to which the Court shall function. However, situations might emerge where a legal question can be Article 21(1)(c): General principles derived from national laws of legal systems of the world
In the previous section of this thesis, it was argued that the ICC should have a unique procedural system, one of which is not influenced by the general principles and laws of national jurisdictions, mainly because of the ever-going conflict between inquisitorial and adversarial systems. Given the very diverging approaches towards witness preparation at the national level, the Court had already stated that no general principle of law allowing for the practice could be derived from the national legal systems worldwide.
Bitti G, “Article 21 and the Hierarchy of Sources of Law before the ICC” in Stahn C, The Law and Practice of the International Criminal Court (Oxford University Press 2015)
Jackson and Bruger’s Principled Pragmatism p.604 onwards
The specific situation of the Protocols – step forward or failed attempt?
William A. Schabas book p. 1085: explique bien le witness preparation protocol
Sylvia Ntube Ngane book
BibliographyPrimary SourcesLegislationCode of Professional Conduct Resolution ICC-ASP/4/Res.1 2005ICC Regulations of the Court
Regulations of the Registry, ICC-BD/03-03-13, 6 March 2006 (Approved by the presidency), as amended on 25 September 2006 and 4 December 2013
Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into force on 1 July 2002) 2187 UNTS 90 (Rome Statute)
Rules of Procedure and Evidence of the International Criminal Court ICC-ASP/1/3 and Corr.1 2002
‘Victims and Witness Unit’s Unified Protocol’ on the practices used to prepare and familiarize witnesses for giving testimony at trial, ICC-01/05-01/08-972 and public Annex, ICC-01/05- 01/08-972-Anx (22 October 2010)
Witness Preparation Protocol ICC-02/05-03/09-AnxA 2014Case-lawProsecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11- 462Prosecutor v Jean-Pierre Bemba Gombo, ICC- 01/05-01/08-1016Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-679Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC- 01/09-01/11-446Secondary SourcesBooksBoas G, The Milosevic Trial Lessons for the Conduct of Complex International Criminal Proceedings (Cambridge University Press 2007)
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Safferling C, International Criminal Procedure (Oxford University Press 2012)Schabas WA, The International Criminal Court: A Commentary on the Rome Statute (2nd edn Oxford University Press 2016)
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Ambos K, “‘Witness Proofing’ before the ICC: Neither legally admissible nor necessary” in Stahn C and Sluiter G (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff 2009)
Bitti G, “Article 21 and the Hierarchy of Sources of Law before the ICC” in Stahn C, The Law and Practice of the International Criminal Court (Oxford University Press 2015)
Damaska M., “Problematic Features of International Criminal Procedure”, in Antonio Cassese et al. (eds), The Oxford Companion to International Criminal Justice (OUP, 2009)
Finnin S, “From Lubanga to Ruto: Witness Proofing under the Applicable Law of the ICC”, in Mariniello T (ed.), The International Criminal Court in Search of its Purpose and Identity (Routledge, 2014) 567-612
Garry H, “Witness Proofing”, in Carter L and Pocar F (eds), International Criminal Procedure: The Interface of Civil Law and Common Law Legal systems (Edward Elgar Publishing Limited 2013)
McAuliffe de Guzman M, “Article 21”, in Triffterer O (ed.), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd edn, München: C.H. Beck – Hart – Nomos, 2008), 703
Roberts P, “Prosecutors interviewing witnesses: a question of integrity” in Hunter J, Roberts P, Young SNM and Dixon D, The Integrity of Criminal Process: From Theory into Practice (Bloomsbury Publishing 2016)
Sluiter G, “Trends in the Development of a Unified Law of International Criminal Procedure” in Stahn C and van den Herik L (eds), Future Perspectives on International Criminal Justice (Asser, 2009)
Journal ArticlesAmbos K, “Witness Proofing in the International Criminal Court: Response to Karemaker, Taylor, and Pittman” (2008) 21 Leiden Journal of International Law 911
Babucke L, “Book review: Reviewing Schüttpelz, Kai Oliver (2014): Witness Preparation in International and Domestic Criminal Proceedings” (2017) 28 Criminal Law forum 349 https://link-springer-com.ezproxy.ub.unimaas.nl/content/pdf/10.1007%2Fs10609-017-9320-0.pdf accessed 13 May 2018
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Bohlander M, “Language, Culture, Legal traditions of International Criminal Procedure”, 12 Journal of International Criminal Justice (JICJ) (2014) 491
Cogan JK, “International Criminal Courts and Fair Trials: Difficulties and Prospects” (2002) 27(1) Yale Journal of International Law 111
Jackson JD and Brunger YM, “Witness Preparation in the ICC: An Opportunity for Principled Pragmatism” (2015) 13 Journal of International Criminal Justice 601
Jordash W, “The Practice of ‘Witness Proofing’ in International Criminal Tribunals: Why the International Criminal Court should prohibit the practice” (2009) 22 Leiden Journal of International Law 501
Karemaker R, Taylor Don B III and Pittman TW, “Witness proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence” (2008) 21 Leiden Journal of International Law 683
— — “Witness Proofing in International Criminal Tribunals: Response to Ambos” (2008) 21 Leiden Journal of International Law 917
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Ntube Ngane S., “Witnesses before the International Criminal Court” (2009) 8 The Law and Practice of International Courts and Tribunals 431
Sarvarian A, “Ethical Standards for Prosecution and Defence before the International Courts: the Legacy of Nuremberg”, 10 JICJ (2012) 439Schön C, “Telling their stories in their own words: witness familiarization at the International Criminal Court” (2010) 81 Revue internationale de droit penal 189
Vasiliev S, “Proofing the ban on ‘Witness Proofing’: Did the ICC get it right?” (2009) 20 Criminal Law Forum
ReportsInternational Bar Association, “Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme report on the ICC’s efforts and challenges to protect, support and ensure the rights of witnesses” (2013) International Bar Association, International Criminal Court Programme file:///Users/nelllecrenier/Downloads/ICC%20Witness%20report%20(July%202013)%20.pdf accessed 13 May 2018
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Smith CA and Koenig A, “Bearing Witness at the International Criminal Court: An interview Survey of 109 Witnesses” (2014) UC Berkeley: Human Rights Center https://www.law.berkeley.edu/files/HRC/Bearing-Witness_FINAL.pdf accessed 13 May 2018
Washington College of Law, “Witness Proofing at the International Criminal Court” (2009) War Crimes Research Office, American University Washington College of Law https://www.wcl.american.edu/impact/initiatives-programs/warcrimes/our-projects/icc-legal-analysis-and-education-project/reports/report-7-witness-proofing-at-the-international-criminal-court/ accessed 13 May 2018
WebsitesDonovan D., “International Criminal Court: Successes and Failures” (International Policy Digest, 23 March 2012) https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/ accessed 13 May 13, 2018
Duerr B., “Witnesses are the ICC’s Achilles Heel” (JusticeHub, 23 september 2016) https://justicehub.org/article/witnesses-are-iccs-achilles-heel accessed 13 May 2016
“Termination of Ruto and Sang cases at the ICC: Witness tampering means impunity prevails over justice again” (fidh: Worldwide movement for human rights, 5 April 2016) https://www.fidh.org/en/region/Africa/kenya/termination-of-ruto-and-sang-case-at-the-icc-witness-tampering-means accessed 20 June 2018