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

Trial Proceedings
ensure the efficiency of trial proceedings by
diverting from the principle of orality under
Article 69(2), 1549 trials should not be ‘vitiated
because illegal steps have been taken, however
useful the ideas may have been’. 1550 He also
underscored the fundamental importance
of live testimony in criminal proceedings to
present crucial aspects of the evidence to the
Trial Chambers. He thus reiterated Trial Chamber
I’s determination that live witness testimony
carries with it ‘material advantages’, most
importantly the fact that ‘the evidence can be
fully investigated and tested by questioning, and
the Court is able to assess its accuracy, reliability
and honesty, in part by observing the conduct
and demeanour of the witness’. 1551
A recent decision in the Bemba case concerning
the admissibility of written witness statements
bears significantly on the use of in-person
witness testimony at the ICC in the future. On
3 May 2011, the Appeals Chamber reversed
Trial Chamber III’s decision authorising the
wholesale admission into evidence of all
witness statements, without a case-by-case
analysis of the need for such inclusion, finding
that it contravened the principle of orality
provided for under Article 69(2). In doing so, the
Appeals Chamber confirmed the primacy of the
principle of orality and that witnesses’ written
statements can be admitted only in exceptional
circumstances. In doing so the Appeals Chamber
agreed with Judge Ozaki’s dissent of the
impugned decision by Trial Chamber III on the
matter, as described in greater detail, below. This
Appeals Chamber decision confirms the primacy
of oral witness testimony as a fundamental
characteristic of criminal trials before the ICC, for
which other types of evidence cannot always be
substituted.
In the impugned decision, issued 19 November
2010, 1552 Trial Chamber III prima facie admitted
all items of evidence on the Prosecution’s list of
evidence 1553 and revised list of evidence without
conducting an item-by-item analysis, using the
discretion accorded under Rule 63(2) of the Rules
of Procedure and Evidence. In particular, it found
that although Article 69(2) provided that ‘the
testimony of a witness at trial shall be given in
person ...’ this constituted a mere presumption
in favour of oral testimony, rather than an actual
requirement for the prevalence of orality on
the whole. 1554 Furthermore, the Chamber noted
that the prima facie admission of documents
did not preclude oral testimony. 1555 It attached
significant weight to the expeditiousness of
proceedings, and found that the prima facie
admission of evidence would ‘shorten the
length of questioning by the parties in court and
contribute to the accused being tried without
undue delay’. 1556 The Trial Chamber also found
that it would ‘allow for more coherence between
the pre-trial and trial stages of proceedings’. 1557
The majority further noted that it favoured the
submission of the entirety of the witnesses’
statement(s), rather than excerpts. 1558 Where a
party chose not to submit the statement(s) of
a witness called to testify, the majority found
that the Chamber had the authority to request
the submission of any statement(s) it deemed
necessary for the determination of the truth. 1559
1549 Article 69(2) provides that ‘the testimony of a witness
at trial shall be given in person, except to the event
provided by the measures set forth in Article 68 or in the
Rules of Procedure and Evidence [...].’
1550 ‘Reflections of a Trial Judge’, Speech by Judge Sir Adrian
Fulford to the Assembly of States Parties, December
2010, New York, para 14, available at ,
last visited on 30 October 2011.
1551 ICC-01/04-01/06-1603, para 21.
1552 ICC-01/05-01/08-1022.
1553 ICC-01/05-01/08-595-Conf-AnxB.
1554 ICC-01/05-01/08-1022, para 14.
1555 ICC-01/05-01/08-1022, para 20.
1556 ICC-01/05-01/08-1022, para 23.
1557 ICC-01/05-01/08-1022, para 27.
1558 ICC-01/05-01/08-1470, para 11.
1559 ICC-01/05-01/08-1470, para 12.
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