'Witness Proofing' Before the ICC: Neither Legally Admissible Nor Necessary
THE EMERGING PRACTICE OF THE INTERNATIONAL CRIMINAL COURT, pp. 599-614, C. Stahn, G. Sluiter, eds., Leiden 2009
10 Pages Posted: 15 Dec 2011
Date Written: 2009
PTC I and TC I distinguish between 'familiarization' and 'proofing' of witnesses. The distinction goes back to a recent English Court of Appeal decision where it was described as 'dramatic'. The essence of familiarization is to make the witness generally familiar with the court’s infrastructure and procedures in order to prevent him or her being totally taken by surprise or even re-victimized. Thus, the underlying idea of familiarization is generally to prepare the witness to enable her to give oral evidence at trial in a satisfactory manner. For this purpose the Court’s Victims and Witnesses Unit ('VWU') has been set up and its functions can be summarized, based on Art. 57 (3)(c), 68 (1) ICC Statute, Rules 16 (2), 17 (2)(b) and 87, 88 of the Rules of Procedure and Evidence ('RPE'), as follows: •Assisting witnesses when they are called to testify before the Court; •Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings; •Informing witnesses of their rights under the Statute and the Rules; •Advising witnesses where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; •Assisting witnesses in obtaining medical, psychological and other appropriate assistance; and •Providing witnesses with adequate protective and security measures and formulating long-term and short-term plans for their protection.
After initial confusion it is now clear that there is no disagreement between OTP and Chambers (PTC I and TC I) as to this practice. With its recent submission the OTP, reacting to the PTC I’s decision of 8 November 2006, explicitly concurred with the PTC’s characterization of familiarization and the respective competence of the VWU. In the result, one can say that familiarization is not only allowed, but even required to a certain extent to comply with the Statute’s obligations with regard to the protection of victims.
As to the definition of proofing, there also seems to be agreement now. The OTP - following the case law of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') – understands witness proofing as the 'practice whereby a meeting is held between a party to the proceedings and a witness, before the witness is due to testify in Court, the purpose of which is to re-examine the witness's evidence to enable more accurate, complete and efficient testimony.' More generally it is said that witness proofing serves to 'discuss issues related to that witness's anticipated evidence.' With this definition the OTP distinguishes proofing from familiarization in that the former fundamentally focuses on the concrete evidence to be presented at trial. In fact, the OTP abandons its former, much broader definition whereby it did not distinguish between familiarization and proofing. In the result, the OTP’s definition concurs with TC I, according to which the gist of proofing lies in 'preparing a witness in a substantive way for (…) testimony at trial'. Thus, in sum, there is now a general agreement that witness proofing is substantive preparation with a view to giving testimony at trial.
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