02.12.06 - ICTR/WITNESS - ICC MIGHT PUSH THE ICTR AND THE ICTY TO REVISE THEIR WAY OF OPERATING

Arusha, December 1rst (FH) – Following a ruling of the International Criminal Court (ICC), motions have been filed before both of the United Nations ad hoc tribunals concerning the practice of « witness proofing » that consists in briefing witnesses before they appear before the chamber. Mid-November in Arusha, Mr. Peter Robinson, who represents Joseph Nzirorera in the trial called « Karemera », asked the Court of First Instance of the International Criminal Tribunal for Rwanda (ICTR) to forbid the Prosecutor to « prepare » his witnesses before they testify. Two days later in The Hague, the defense team of Dragoljub Odjanic, on trial in « Milutinovic & co. » who Robinson work with, had filed the same motion before the International Criminal Tribunal for Ex-Yugoslavia (ICTY). Both defendants refer to a ruling issued by the ICP on November 8th and prohibiting such intervention from the prosecutor. « Witness proofing » had never been concretely defined by the international jurisdictions before the intervention of the ICP on November 8th 2006. And yet, it is a common pattern for both the ICTs; its validity was confirmed by the Court of First Instance of the ICTY on December 10th 2004 in the Limaj case. In a 22-page decision, the IPC admits that « witness proofing » is authorized but underlines that, on the other hand, the Court of First Instance has not clearly determined the rules of the practice. The IPC notes that under domestic laws, « witness proofing » appears under as many different names as the number of measures it encompasses. However, it is possible, as the court has done, to determine two different types of witness preparation: familiarizing the witness with the mechanics of the jurisdiction and the role of each and everyone present at the hearing and preparing him for the next testimony. The point of this briefing is to give the possibility to the witness to re read his first statement, to go through the questions he will have to answer in court, to detect potential mistakes in the first declaration, to add elements supporting either the defense or the prosecution and eventually to proofread the text for translation errors. This preparation, which has grown common in Arusha, is justifiable in the case of witnesses whose first testimony took place several years before. Its purpose, in that case, is notably to make up for memory lapses or to specify details that might have been forgotten. According to certain persons present during these meetings, they are similar to a rehearsal or even « brainwashing », knowing that once the witness has taken oath, he is separated from both defense and prosecution. Witness proofing can also sometimes allow the Prosecutor to gather elements to fill potential gaps in his indictment or to put the finishing touches to elements of proof as they appear. And yet, the Chambers of both the ICT repeatedly stated that Prosecutor is supposed to know his case before the trial begins and that it induces a risk of iniquity for the adverse party, unable to take cognizance of the new elements in due time. Any amendment of the witness’s statement is supposed to be communicated to the adverse party and the judges before the hearing of the witness. The petitioners complain that such a practice has created many problems of disclosure and late registration of evidences outside the indictment, preventing them to fully exercise their rights. According to the IPC, the border between what is legal and what goes against professional ethics or could constitute an offense varies a lot from one legislation to another. The IPC considers that the familiarization of the witness to the jurisdiction should be the responsibility of the Victims and Witnesses Section which is neutral since it deals with prosecution and defense witnesses both. The Court thinks that the second type of witness proofing is unethical and illegal. Not only is it absent from its founding texts and the principles of international justice - which is also the case for both ICTs - but it is prohibited under many domestic laws. The IPC stresses that it is also necessary to check if witness proofing exists in the legislation of the court which would have jurisdiction on the case. The attorneys of Joseph Nzirorera and Dragoljub Odjanic both note that « witness proofing » is forbidden in Rwanda and in Ex-Yugoslavia. As to determining whether the practice is ethical or not, the Court of First Instance of the ICTY stated during the Limaj case that there exist standards of professional behavior meant to avoid abuse and maintained that it had received no notification establishing that these standards had been flouted. AV/PB Hirondelle News Agency