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Witness Tampering and International Criminal Tribunals

Published online by Cambridge University Press:  24 January 2014

ROBERT CRYER
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Abstract

This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.

Keywords

witnessesevidenceInternational Criminal CourtICTYICTR
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals: Symposium: Expertise, Uncertainty, and International Law (Part 2)
Information
Leiden Journal of International Law , Volume 27 , Issue 1 , March 2014 , pp. 191 - 203
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 See R. Cryer et al., An Introduction to International Criminal Law and Procedure (2010), Chapter 2.

2 See E. Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (2005).

3 K. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (2011), 74

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5 See Rohan, C., ‘Rules Governing the Presentation of Testimonial Evidence’, in Khan, K., Buisman, C., and Gosnell, C. (eds.), Principles of Evidence in International Criminal Justice (2010), 499 at 538Google Scholar.

6 For two recent studies see N. Combs, Fact-Finding without Facts: The Uncertain Foundations of International Criminal Convictions (2010); T. Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (2009).

7 See, e.g., Rohan, supra note 5; Cryer, R., ‘Witness Evidence in International Criminal Tribunals’, (2003) 3 Law and Practice of International Tribunals 411CrossRefGoogle Scholar.

8 Cassese, A., ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, (1998) 9 European Journal of International Law 1, at 13CrossRefGoogle Scholar.

9 Prosecutor v. Tadić, Judgement, Case No. IT-94-1-T, 7 May 1997, paras. 553–554

10 Prosecutor v. Haradinaj, Balaj and Brahimaj, Judgement, Case No. IT-04-84-T, 3 April 2008.

11 Ibid., para. 22.

12 Ibid., paras. 23–24.

13 Ibid., para. 27.

14 Prosecutor v. Haradinaj, Balaj and Brahimaj, Judgement, Case No. IT-04–84-A, 19 July 2010, para. 28.

15 Ibid., para. 34.

16 Ibid., para. 35.

17 Ibid., paras. 40, 49.

18 See also Prosecutor v. Limaj, Bala and Musliu, Judgement, Case No. IT-03–66-T, 30 November 2005, para. 15; and Prosecutor v. Boškoski and Tarčulovski, Judgement, Case No. IT-04–82-T, 10 July 2008, para. 14

19 Prosecutor v. Rasić, Judgement, Case No. IT-98–32/l-R77.2-A, 16 November 2012.

20 For the third judgement see Prosecutor v. Šešelj, Public Version of the Judgement Issued 30 May 2013, Case No. IT-03-67-R77.4-A, 20 May 2013.

21 Prosecutor v. Bizimingu, Mugenzi, Bikamumpaka and Mugiraneza, Judgement, Case No. ICTR-99-50-T, 30 September 2011, paras. 108–110.

22 Prosecutor v. Simba, Judgement, Case No. ICTR-01-76-T, 13 December 2005.

23 Ibid., para. 41.

24 Independent Counsel v. Brima, Samura Judgment in Contempt Proceedings, SCSL-2005-01, 26 October 2005.

25 Independent Counsel v. Bangura, Kargbo, Kanu and Kamara, Judgment in Contempt Proceedings, SCSL-2011-2-T, 25 September 2012.

26 See generally R. Mulgrew, Towards the Development of the International Penal System (2013).

27 See Ayyash et al., Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01-17 bis, 16 February 2011; and see Saul, B., ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Inventions an International Crime of Transnational Terrorism’, (2011) 24 LJIL 677CrossRefGoogle Scholar.

28 News Briefing of Legal Counsel on the Special Tribunal for Lebanon, available at www.un.org/News/briefings/docs/2009/090303_OBrien.doc.htm.

29 ‘Tribunal to Launch Investigation in Alleged Witness Intimidation’, STL press release, 29 April 2013.

30 ‘Tribunal Condemns Attempts to Interfere with Judicial Process’, STL press release, 11 April 2013; ‘STL Appoints Investigator to Probe Unauthorised Disclosures’, STL press release, 2 July 2013.

31 Prosecutor v. Lubanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012.

32 Acquaviva, Guido, ‘Foreword’, (2012) 10 Journal of International Criminal Justice 881, at 881CrossRefGoogle Scholar.

33 Lubanga, supra note 31, para. 156.

34 Prosecutor v. Muthaura and Kenyatta, Prosecution Notification of the Withdrawal of Charges against Francis Kirimi Muthaura, ICC-01/09-02/11, 11 March 2013, para. 11.

35 See, e.g., B. Momanyi and S. Jennings, ‘Kenya Witnesses Face Harassment’, International Justice – ICC, ACR Issue 350, 5 June 2013, www.iwpr.net/report-news/kenya-witnesses-face-harassment.

36 Prosecutor v. Walter Osapisi Barasa, Warrant of Arrest for Walter Osapisi Barasa, ICC 01/09-01/13, 2 August 2013.

37 See generally Liang, J., ‘The Inherent Jurisdiction and Inherent Powers of International Criminal Courts and Tribunals: An Appraisal of Their Application’, (2012) 15 New Criminal Law Review 375Google Scholar.

38 Rule 77 (to which the Rule 77 of both the ICTR and SCSL mutatis mutandis, conform).

39 Rule 71(N) ICTR RPE.

40 Rule 71 (O)(iii)(iv) ICTR RPE.

41 Some of which are documented in Lubanga, supra note 31, paras. 164–168.

42 Prosecutor v. Delalić, Mucić, Delić and Landžo, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 50. It is notable that these measures are similar to those suggested in Article 25 of the 200 UN Convention on Transnational Organized Crime, on which see D. McLean, Transnational Organized Crime: A Commentary on the UN Convention and Its Protocols (2007) 266–9.

43 See generally W. Schabas, The International Criminal Court: A Commentary on the Rome Statute of the International Criminal Court (2011), 824–7.

44 See, e.g., ibid., at 855–6.

45 Lubanga, supra note 31, paras. 181–185, 203–205, 482–483. The SCSL has faced cognate difficulties; see, e.g., Prosecutor v. Brima, Kallon and Kamara, Judgment, SCSL- 04–16-T, 20 June 2007, paras. 126–129; Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, 2 March 2009, paras. 525–527.

46 Haradinaj, supra note 10, para. 49.

47 Lubanga, supra note 31, para. 135. For discussion on point see Johnson, L., ‘The Lubanga Case and Cooperation between the UN and the ICC’, (2012) 10 Journal of International Criminal Justice 887CrossRefGoogle Scholar.

48 Ibid., paras. 151–154.

49 Ibid., para. 155.

50 I am grateful to Sarah Nouwen for this point.

51 Lubanga, supra note 31, para. 159.

52 See supra note 25 and accompanying text.

53 Roberts, R., ‘The Lubanga Trial Chamber's Assessment of Evidence in Light of the Accused's Right to the Presumption of Innocence’, (2012) 10 Journal of International Criminal Justice 923, at 938–41CrossRefGoogle Scholar.

54 Benvenuti, P., ‘Complementarity of the International Criminal Court to National Jurisdictions’, in Lattanzi, F. and Schabas, W. (eds.), Essays on the Rome Statute of the International Criminal Court (1999), 21 at 50Google Scholar.

55 For the difficulties of this, from a political point of view, see V. Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (2008).

56 On the abilities of the LRA see Nalule, C. and Odoi-Musoke, R., ‘The Complementarity Principle Put to the Test: The Ugandan Experience’, in Nmehielle, V. (ed.), Africa and International Criminal Justice (2012) 243Google Scholar, at 248–9.

57 Lubanga supra note 31.

58 Similar considerations apply in the context of Sudan, where co-operation by the Sudanese authorities has been negligible since warrants of arrest were issued against government officials. See, e.g., Cryer, R., ‘Darfur: Complementarity as the Drafters Intended?’, in Stahn, C. and el Zeidy, M. (eds.), The International Criminal Court and Complementarity: From Theory to Practice (2011), at 1097Google Scholar.

59 On which see Schabas, supra note 43, at 982.

60 On the nature of such offences see N. Boister, An Introduction to Transnational Criminal Law (2012), Chapter 1.