Chair: Alette Smeulers, Department of Criminal Law and Criminology, University of Groningen
The Truth, the Whole Truth, and Nothing But the Truth? Testimonies of International Crimes Before International Criminal Courts and Tribunals (ECACTJ))
Author: Bouwknegt Thijs, Netherlands Institute for War, Holocaust and Genocide Studies (NIOD) & Universities Amsterdam (UvA), Utrecht (UU) and Leiden (LU)
Title: Memory Beyond Any Reasonable Doubt. Witness Testimony as Evidence or Oral History of Mass Atrocity?
This presentation problematizes the use of post–fact individual witness testimony as legal evidence for mass crime. Only in rare cases do génocidaires, criminals against humanity and war criminals leave behind indisputable evidence of their acts. Generally, these mass atrocity crimes are poorly documented in the first place, or the evidence was destroyed afterwards. This has become the key challenge in the field of international criminal justice, a system of international criminal tribunals and courts that seeks to investigate, prosecute and judge those responsible for mass violence. In the absence of direct, tangible and convincing evidence from the crime scenes, that could best establish facts beyond any reasonable doubt, the system is almost exclusively dependent on witness’ memories and narratives about the crime scenes, sometimes decades after the events. Thus, these courts are fundamentally handicapped in their “ways of knowing after atrocity”. Relying on legally enticed, yet unreliable, human memory as objective source of fact for the purposes of fact-ascertainment and subsequent judging, severely impacts the capacity of international criminal tribunals to adequately and properly carry out their work. Based on 15 years of trial observations and archival research at the ICTR, the SCSL and the International Criminal Court, this presentation discusses the consequences of the reliance on witness testimony for the interrelated judicial and historical record.
Keywords: Testimony; evidence; Rwanda; DR Congo; Sierra Leone; ECACTJ
Author: Chlevickaite Gabriele, Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) & Center for International Criminal Justice (CICJ), VU University Amsterdam
Title: Questionable Links, Examined. an Empirical Assessment of Insider Witness Assessments at International Criminal Courts and Tribunals
This study critically evaluates and empirically assesses the use of insider witnesses at the international criminal courts and tribunals. Historically, and to this day, insider testimony is one of the principal means of obtaining the evidence linking the often high-ranking accused to the crimes perpetrated on the ground. As such, their testimony is critical to effective fact-finding in international crimes cases. This has caused significant difficulties to the adjudicators, as insiders, more so than any other type of witness, present an array of credibility and reliability issues that the judges must take into account while assigning evidentiary weight to their testimony. Still, how these concerns affect the judges’ eventual determinations is unknown. This study presents an empirical evaluation of insider testimony assessments at the ICTY, ICTR, SCSL, and the ICC, based on the analysis of trial judgments. The findings indicate the judges’ prioritization of certain credibility and reliability concerns over others, and the degree to which issues specific to international witnesses are (not) taken into account in such assessments.
Keywords: International Criminal Justice; International Criminal Courts and Tribunals; Witness Testimony; Fact-finding; Insiders; ECACTJ
Author: Schot Suzanne, Department of Criminal Law and Criminology, University of Groningen
Title: A Presumption of (Un)Reliability? the Impact of Trauma on Testimonies Within Judgments of International Criminal Courts and Tribunals
At times, judgments of international criminal courts and tribunals mention that they have taken into account the impact that the traumatic nature of the events may have on the testimonies of witnesses. Yet, it remains unclear as to ‘how’ this is taken into consideration. This paper, first, briefly considers what trauma entails and how the traumatic nature of the events may play a role in distorting both what is witnessed and what is recollected. Secondly, the paper examines judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and judgments of the International Criminal Court (ICC) in which trauma is mentioned as a factor having impacted the testimonies before them. It is examined to what extent trauma has been mentioned generally or in relation to specific witnesses, how this has impacted the testimony of the witnesses (e.g. inconsistency, lack of detail), and how this has been assessed by the judges with regard to their decision on the admissibility of evidence. In addition, it is assessed how many times an expert has been called to clarify the effect of trauma on the respective testimonies or whether a psychological report was issued. The findings demonstrate that the concept of ‘trauma’ should be taken (more) seriously by international criminal courts and tribunals.
Keywords: International Criminal Justice; International Criminal Courts and Tribunals; Witness Testimony; Fact-finding; Trauma; ECACTJ
Author: Sagana Anna, Section Forensic Psychology, Department of Clinical Psychological Science, Maastricht University
Title: Common Misconceptions in the Evaluation of the Credibility of Witness Testimony
In many cases courts have little to go on other than witness testimony. Thus, to rule upon a case, judges should determine the credibility of witness testimony and decide on its evidentiary strength. It is therefore important to understand the dimensions of credibility (i.e., accuracy and truthfulness) and debunk common misconceptions with regard to markers of unreliable testimony. This presentation examines the tension between “common sense” evaluations of witness credibility and empirical findings. Specifically, it touches upon the inclination to conclude that a testimony is inaccurate when eyewitness testimonies show inconsistencies from one interview to another or when witnesses recall highly emotional and stressful events. Both these assertions are at odds with research findings. Additionally, it will be shown that an extreme level of consistency between testimonies is an indicator of deceit rather than truthfulness. The research findings will be discussed in light of theories about memory recall and in relation to the evidentiary weight given to such testimonies.
Keywords: Eyewitnesses; Testimony; Credibility; Consistency; ECACTJ