Proofing the Ban on `Witness Proofing’: Did the ICC Get it Right?

Abstract

This paper focuses on the reasons for disaccord between the ICC and the more seasoned international criminal tribunals on the issue of allowing substantive preparation of witnesses for testifying in court. The rationales behind the opposing decisions and the ensuing debate on the legitimacy and utility of witness proofing continue to be overshadowed by competition between the ‹adversarial’ and the ‹inquisitorial’ ideologies unfolding in the guise of policy rhetoric. The ban on witness proofing imposed by both Pre-Trial Chamber I and Trial Chamber I of the ICC is based on a stringent application of Article 21 and the evidentiary regime in which the Court's discretion to elect the applicable rules of evidence is more circumscribed than under Rule 89 (B) of its counterparts. Although the ICC trial scheme is rather obscure, attempts to read the possibility of witness proofing into it may well reveal that the practice would be an extraneous element in the ICC procedural system characterized by a different configuration of the truth-finding mandate that eschews the concept of partisan ownership of witnesses. The antipodal judicial stances on witness preparation stem from the substantial dissimilarities between the two models of international criminal procedure, and each of them may be defended both legally and in policy terms. While there is little chance of attenuating the fragmentation of international criminal practice in this area, the ICC’s dissent may have had positive systemic effects insofar as it emphasizes the independent value of witness familiarization and the need for enhanced judicial control over witness contact.