Sham of the Moral Court? Testimony Sold as the Spoils of War

in Global Journal of Comparative Law
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This paper analyses the critical influences on witness-based truth-telling for judicial decision-making in the international criminal tribunals. The judicial fixation on witness testimony reflects the weight and legitimacy given to personal testimony before international courts. This weight must be balanced by the awareness that a witness may provide false testimony intentionally, or may be coaxed by third parties to provide such testimony, as has been evidenced recently before the ICC. If witness testimony is tainted then its capacity to endorse the truth-finding function of the court is compromised. As a consequence the ability to assert that the tribunal is a ‘moral court’ based on empirical truth in such circumstances is jeopardized.

The nexus between witness testimony, truth, the morality of judicial determinations, and the legitimacy this affords is explored in what follows. We question whether simple assertions that witness testimony, tested through adversarial examination, produces truth and resultant morality, are all they seem. The analysis also critiques the forensic reality of witness testimony before the international tribunals.

Ultimately the paper suggests that while truthful testimony is crucial if international criminal trials are to produce legitimate judicial determinations, the naïve claim to a moral court as a consequence of tested witness testimony is problematic at least and unsustainable at best.

Sham of the Moral Court? Testimony Sold as the Spoils of War

in Global Journal of Comparative Law

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References

53

Goran Sluiter‘The ICTR and the Protection of Witnesses’Journal of International Criminal Justice (2005) 962–976 at 964.

60

Ibid. para 687; Yael Weitz‘Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement’Cardozo Journal of Law & Gender (2009) 357 366–369.

62

Valerie Oosterveld‘Gender-sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the ICC’New England Journal of International and Comparative Law (2005) 119 121–122; Barbara Bedont and Katherine Hall-Martinez ‘Ending Impunity for Gender Crimes under the International Criminal Court’ 6 Brown Journal of World Affairs (1999) 65 80; Kellye L. Fabian ‘Proof and Consequences: An Analysis of the Tadic & Akayesu Trials’ DePaul Law Review (2000) 981; Matthew J. Burnett ‘Remembering Justice in Rwanda: Locating Gender in the Judicial Construction of Memory’ Seattle Journal for Social Justice (2005) 757 765–766.

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