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‘Witness Proofing’ before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman

Published online by Cambridge University Press:  01 December 2008

KAI AMBOS
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Abstract

This paper was written at the request of the LJIL editorial board as a reply to the article by Karemaker, Taylor, and Pittman published in the previous issue. It is argued that their position starts from incorrect assumptions and that their overall assessment of proofing is flawed, especially with regard to the risks for fair trial. As to the law of the international tribunals it is acknowledged, however, that there is a structural and normative difference between the ICTY (as the most important ad hoc tribunal) and the ICC. While the former still follows, despite some normative changes, a predominantly adversarial procedure, the ICC Statute provides for a mixed adversarial–inquisitorial procedure. Such a procedural model is not compatible with the adversarial origins of witness proofing and it is therefore not surprising that the ICC Statute does not provide for this technique. As a consequence, at the ICC proofing is neither legally admissible nor necessary.

Keywords

International Criminal Courtinternational criminal procedureinternational criminal tribunalwitness proofing
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Tribunals
Information
Leiden Journal of International Law , Volume 21 , Issue 4 , December 2008 , pp. 911 - 916
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

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

2 K. Ambos, ‘Witness Proofing' before the ICC: Neither Legally Admissible nor Necessary’, in C. Stahn and G. Sluiter (eds.), The ICC at Five Years: The Court's Emerging Practice (2008, forthcoming).

3 On the difficult terminology see Ambos, K., ‘International Criminal Procedure: Adversarial, Inquisitorial or Mixed?’ (2003) 3 International Criminal Law Review 1, at 2 ffCrossRefGoogle Scholar. For an innovative comparative analysis of both the ‘inquisitorial’ and ‘adversarial’ traditions, see R. Vogler, A World Wide View of Criminal Justice (2005), 1 ff.

4 See correctly Prosecutor v. Lubanga, ICC-01/04–01/06, Decision on the practices of witness familiarisation and witness proofing, 8 November 2006 (Lubanga Pre-trial Decision), para. 26, referring to ‘witnesses of the Court’ in contrast to ‘witnesses of either party’; concurring Prosecutor v. Lubanga, ICC-01/04–01/06–1049, Decision regarding the practices used to prepare and familiarise witnesses for giving testimony at trial, 30 November 2007 (Lubanga Trial Decision), paras. 33–34.

5 K. Ambos, ‘The Structure of International Criminal Procedure: Adversarial, Inquisitorial or Mixed?’, in M. Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (2007), 431 and passim, with further references.

6 In this same note they refer to a ‘German investigative judge’, overlooking the fact that the investigative function rests in the German system – contrary to the French with its juge d'instruction – exclusively with the prosecutor, and the so-called Ermittlungsrichter of the German Strafprozessordnung (Criminal Procedure Code, explicitly mentioned only in §169 and §304(5)) is merely a juge de garanties/juez de garantias, who does not investigate but only authorizes certain coercive measures.

7 See Karemaker et al., supra note 1, at s. 5, for the full quote of the relevant part: ‘It might be argued that if either the ICC Statute or the ICC's Rules of Procedure and Evidence unequivocally dictated the result reached in the Lubanga Pre-trial or Trial Chamber Decisions, there is no value to analysing the merits of the competing approaches to proofing. It is far from clear, however, that the result reached in either decision was inevitable’ (note omitted, emphasis added).

8 Ibid., cont.: ‘But even were such a result demanded by the ICC's governing law, the comparative advantages of proofing would legitimize serious contemplation of legislative reform’ (emphasis added).

9 The concrete technical arguments are of no importance here; for a further discussion see Ambos, supra note 2, s. II.1.a.

10 See ibid., s. II.1.

11 Lubanga Pre-trial Decision and Lubanga Trial Decision, supra note 4.

12 See, e.g., Wydick, R. C., ‘The Ethics of Witness Coaching’, (1995) 17 Cardozo Law Review 1, at 2Google Scholar, further distinguishing between three grades of coaching according to the lawyer's mens rea and his acting overtly or covertly (at 3–4, 18 ff.). All these grades interfere with the truth-seeking function of the court but grades one and two even amount to inducing the witness to false testimony and to perjury.

13 See Applegate, J. S., ‘Witness Preparation’, (1989) 68 Texas Law Review 277, at 281Google Scholar and passim; Wydick, supra note 12, at 1 ff.; Salmi, L. R., ‘Don't Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial’, (1999) 18 Review of Litigation 136, at 136 ff.Google Scholar; Watson, A., ‘Witness Preparation in the United States and England & Wales’, (2000) 164 Justice of the Peace 816, at 818 ff.Google Scholar; Kerrigan, P.J., ‘Witness Preparation’, (1999) 30 Texas Tech Law Review 1367, at 1369 ff.Google Scholar; Zacharias, F. C. and Martin, S., ‘Coaching Witnesses’, (1999) 87 Kentucky Law Journal 1001, at 1011 ffGoogle Scholar.

14 In re Eldridge, 37 NY 161, 171 (NY 1880), quoted according to Wydick, supra note 12, at 52.

15 For a more detailed analysis see Ambos, supra note 2, s. II.1.(b)(2). As to the situation in other common law jurisdictions see, e.g., for Canada, McGowan, L., ‘Prosecution Interviews of Witnesses: What More Will Be Sacrificed to “Narrow the Justice Gap”?’, (2006) 70 Journal of Criminal Law 351, at 352 ff.CrossRefGoogle Scholar; CPS, Pre-Trial-Witness Interviews by Prosecutors – A Consultation Paper, paras. 12 ff., available at www.cps.gov.uk/publications/docs/pre-trial-wit-consult.pdf.

16 Salmi, supra note 13, at 178.

17 Lubanga Trial Decision, supra note 4, para. 52.

18 See supra note 4 with references.

19 Cf. Applegate, supra note 13, at 307 ff. (311); criticized also in Salmi, supra note 13, at 142–3.

20 Langbein, J. H., ‘The German Advantage in Civil Procedure’, (1985) 52 University of Chicago Law Review 823, 833 n.31CrossRefGoogle Scholar; concurring Applegate, supra note 13, at 311.

21 Cf. F. Feeney and J. Hermann, One Case – Two Systems: A Comparative View of American and German Criminal Justice (2005), at 427.

22 The most recent example is the election as judge of Fumiko Saiga from Japan. This ‘judge’ may have long diplomatic experience, but she does not even have a law degree. In diplomatic circles her election has been justified by the fact that in Japan even persons without legal education are, under certain conditions, eligible to the Supreme Court, so that Art. 36(3)(a) ICC Statute – (only) requiring that the candidates ‘possess the qualifications required in their respective States for appointment to the highest judicial offices’ – is applicable. However, this is unconvincing, given that subpara. (a) does not stand alone but must be read in conjunction with the following subpara. (b), which qualifies the eligibility requirements and, in any case, requires ‘extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court’ (subpara. (b)(ii)). Indeed, subparagraph (b) has been the object of fierce discussions in Rome and New York. Apart from that, while it is true that in Japan even a diplomat without formal legal education can become a judge of the Supreme Court, he or she is one of 15 judges and all the others have a qualification as a lawyer (apart from the diplomat there are six judges, four practising lawyers, two prosecutors, one civil servant, and one professor of law; I am grateful to Professor Dr Makoto Tadaki, Chuo-University, Tokyo, for this information).

23 See for detailed references Ambos, supra note 2, s. II.1(b)(2) with n. 50, 57 ff., 81.

24 For a definition see Lubanga Pre-trial Decision, supra note 4, para. 27.

25 For the functions of this unit see Arts. 57(3)(c), 68(1) ICC Statute, Rules 16(2), 17(2)(b), 87, 88 RPE; see also Lubanga Pre-trial Decision, supra note 4, para. 22; concurring Lubanga Trial Decision, supra note 4, para. 29.