Empirical Study of Insider Witnesses’ Assessments at the International Criminal Court

In: International Criminal Law Review
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  • 1 1Analysis Assistant, icc, The Hague, The Netherlands, gabriele.chlevickaite@gmail.com
  • 2 VU University Amsterdam, Netherlands

Insider witnesses play an indispensable role in many international criminal cases. Despite often being essential for linkage evidence, the use of insider witnesses comes with a set of special concerns regarding their credibility, in turn casting doubt on the reliability of their evidence. This explorative empirical study aims to fill the gap in the scholarship and presents an analysis of credibility and reliability assessments of insider witnesses at the International Criminal Court (icc). It critically evaluates the use of such testimony to see if, how, and which factors relating to credibility and reliability affect the probative value of the evidence provided. The findings indicate that the icc judges put a lot of emphasis on factors such as consistency or detail of testimonies, while factors such as potential bias or questionable motivation of the witness surprisingly do not figure as prominently in ascribing probative value to evidence.

  • 18

    Stepakoff et al., supra note 16, p. 437. Authors claiming: ‘insider testimony is central to the process and outcome of most war crimes trials’.

  • 25

    Aranburu, supra note 23, p. 14.

  • 28

    Rusch, supra note 26, p. 103.

  • 35

    Sanin, supra note 22.

  • 36

    Sesay, supra note 24.

  • 45

    Klamberg, supra note 43, p. 172: ‘Scholars have remarked that the terms reliability and credibility are occasionally used synonymously, which is wrong and/or causes confusion. When assessing probative value and weight, this also becomes a problem in international criminal procedure’.

  • 48

    Cooper, supra note 9, p. 173. ‘The law itself, in the form of judicial instructions, directs jurors to attend to inconsistencies within witness statements’; p. 182: ‘Lay people and experts within the fields of law enforcement and security strongly believe that inconsistent reporting … is grounds for doubting the veracity of the respondent’.

  • 50

    Coyle, supra note 5, p. 8.

  • 51

    Kane, supra note 50.

  • 54

    Cooper, supra note 9, p. 224. Author states: ‘the assessment of credibility is made more difficult when historical offences are brought to trial’.

  • 56

    Combs, supra note 6, p. 15: ‘Ability to perceive declines when an individual is experiencing stress’, even though international tribunals sadly have implied that the horror of the events witnesses enhanced witnesses’ memory.

  • 60

    Kelsall, supra note 50, p. 183.

  • 65

    Combs, supra note 6, p. 23. International witnesses may not be able to answer questions pertaining to age, geography, personal and political history, dates, duration, distance, numerical estimations, two-dimensional representations (sketches, maps, photos).

  • 69

    Wald, supra note 53, p. 237: ‘The judge is almost completely dependent on the translator for the content as well as the inflections of voice in which the witness’s testimony is given’, which makes Judge’s job at the icty in assessing demeanour of a witness more difficult than in a domestic court.

  • 70

    Combs, supra note 6, p. 98: ‘in some cultures people do not answer questions directly, thus answers have to be ‘decoded’.

  • 73

    Kelsall, supra note 59, p. 182: ‘Both in the ictr and scsl Judges have observed the difficulties in interpreting witness testimony in a foreign culture. In the ictr Akayesu case, an expert testified that ‘It is a particular feature of the Rwandan culture that people are not always direct in answering questions, especially if the question is delicate’.

  • 74

    Combs, supra note 6, p. 80: ‘Criminal defendants from such cultures may appear to lack remorse for their crimes when their demeanor in fact reflects only adherence to their cultural values’.

  • 76

    Kelsall, supra note 59, p. 102.

  • 79

    Combs, supra note 6, p. 136.

  • 80

    Kelsall, supra note 59, pp. 141–142; Prosecutor v. Popović et al, supra note 38, para. 193: Popović argued that insider witness pw-101 provided false testimony with the goal of securing relocation and other benefits for his family.

  • 82

    Kelsall, supra note 59, p. 215, gives examples of key insiders at scsl, Albert Nallo, who explains inconsistencies between his statements by being afraid to be apprehended himself.

  • 88

    Combs, supra note 6, p. 137. Regarding insiders: ‘many still have reason to fear retaliation following their testimony’.

  • 89

    Harmon and Gaynor, supra note 14, p. 407. Authors claim that ‘while a state of political uncertainty continues to exist, insider witnesses are often reluctant to testify’.

  • 97

    Kelsall, supra note 59, p. 102.

  • 112

    Coyle, supra note 5, p. 3. Assessments of credibility by the triers of fact are made, inter alia, by reference to behavioural stereotypes that are commonly thought to be associated with lying and truth telling.

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