Gender Report Card on the International Criminal ... - YWCA Canada

Trial Proceedings
The role of in-person witness testimony
in ICC proceedings
256
At the ICC, both the Prosecution and the Defence
have the right to call in-person witnesses and to
cross examine witnesses called by the other party. 1536
The Prosecution and Defence determine how many
and which witnesses to call to testify to support
the charges or the defence case. Since the first
confirmation of charges hearing was held in the
Lubanga case, the trend has been towards shorter
hearings with fewer in-person witness testimony,
particularly by the Prosecution. 1537 The practice of
the Prosecution with respect to calling witnesses is
continuing to emerge. The Prosecutor has stated
that in his view an ideal scenario for the Prosecution
1536 Rule 140(2) provides: ‘In all cases, subject to article 64,
paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88,
sub-rule 5, a witness may be questioned as follows: (a) A party
that submits evidence in accordance with article 69, paragraph
3, by way of a witness, has the right to question that witness;
(b) The prosecution and the defence have the right to question
that witness about relevant matters related to the witness’s
testimony and its reliability, the credibility of the witness and
other relevant matters; (c) The Trial Chamber has the right to
question a witness before or after a witness is questioned by a
participant referred to in sub-rules 2 (a) or (b); (d) The defence
shall have the right to be the last to examine a witness.’ In
addition, Article 67 sets forth the specific rights of the accused
with regard to the questioning of witnesses. Pursuant to
Article 67(1)(e), the accused has the right ‘to examine, or have
examined, the witnesses against him or her and to obtain the
attendance and examination of witnesses on his or her behalf
under the same conditions as witnesses against him or her. The
accused shall also be entitled to raise defences and to present
other evidence admissible under this Statute.’
1537 The confirmation hearings in the Lubanga and Katanga &
Ngudjolo cases lasted approximately three weeks (8 – 29
November 2006 and 27 June – 18 July 2008, respectively).
The Bemba confirmation hearing took place over the time
span of only five days (12 – 15 January 2009). The Abu Garda
confirmation hearing lasted approximately 10 days (19 – 29
October 2009) and the confirmation hearing in Banda & Jerbo
took only one day (8 December 2010). The Mbarushimana
confirmation hearing lasted three days (16, 19 – 20 September
2011). The confirmation hearing in the first case in the Kenya
Situation, against Ruto, Kosgey and Sang, took place during
six days (1 – 8 September 2011). In contrast, the confirmation
hearing in the case against Muthaura, Kenyatta and Ali took
approximately three weeks (12 September – 4 October 2011).
would be to present cases without witnesses,
without victims: ‘Our goal is a case with no
witnesses, no victims. We want to use methods
... such as statistical analysis’. 1538 Nonetheless, as
of 16 September 2011, the ICC has heard from
approximately 144 witnesses in 3 trials. 1539 While
only two of these three trials included charges
of gender-based crimes, and only 14 crimebased
witnesses, or 0.1% of the total number
of witnesses, have been called specifically to
substantiate charges of gender-based crimes, 1540
witnesses have testified about gender-based
crimes in all three trials.
1538 ‘Hague Conference: Social Science Research Seen to Play
Key Role in Building Institutions of International Criminal
Law: Innovations in evidence gathering can help hold
leaders accountable for sexual violence and genocide’,
Centre on Law & Globalization Press Release, p 2-3,
available at , last visited on 31 October 2011.
1539 This figure includes all witnesses called by all parties,
including expert witnesses, witnesses called by the Legal
Representatives of Victims and witnesses called by the
Chamber. The figure is based on the public record of
the three cases currently at trial (Lubanga, Katanga &
Ngudjolo and Bemba). Since the start of the Lubanga case
in January 2009 until 16 September 2011, the Prosecution
called a total of 89 witnesses in the three trials, including
eight expert witnesses; the Defence called a total of 44
witnesses; five participating victims were authorised to
testify; and the Chamber called six expert witnesses. For
a more detailed overview of the number of witnesses
called in each trial, see the Trial Proceedings section of the
<strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, 2010 and 2011.
1540 The Prosecution called a total of 14 non-expert witnesses
to substantiate charges of sexual and gender-based
violence (SGBV) in the two trials in which the accused
have been charged with gender-based crimes (Katanga
& Ngudjolo and Bemba). In Katanga & Ngudjolo, the
Prosecution called two (female) witnesses to testify
directly on sexual violence; in Bemba the Prosecution
called 12 non-expert witnesses, nine of whom were
female, to testify directly on sexual violence. For a more
detailed overview of the witness testimony on sexual
violence in the Katanga & Ngudjolo case, see <strong>Gender</strong>
<strong>Report</strong> <strong>Card</strong> 2010, p 163-178; for a more detailed overview
of the witness testimony on sexual violence in the Bemba
case, see the Trial Proceedings section of this <strong>Report</strong>,
above.