Empirical Study of Insider Witnesses’ Assessments at the International Criminal Court

Abstract

Insider witnesses play an indispensable role in many international criminal cases. Despite often being essential for linkage evidence, the use of insider witnesses comes with a set of special concerns regarding their credibility, in turn casting doubt on the reliability of their evidence. This explorative empirical study aims to fill the gap in the scholarship and presents an analysis of credibility and reliability assessments of insider witnesses at the International Criminal Court (icc). It critically evaluates the use of such testimony to see if, how, and which factors relating to credibility and reliability affect the probative value of the evidence provided. The findings indicate that the icc judges put a lot of emphasis on factors such as consistency or detail of testimonies, while factors such as potential bias or questionable motivation of the witness surprisingly do not figure as prominently in ascribing probative value to evidence.

Suspicious minds? Empirical analysis of insider witness assessments at the ICTY, ICTR and ICC

“…Insider witnesses are in a unique position to provide evidence linking the organizers, order-givers or planners of the atrocities to the crimes committed on the ground, which is essential for assessing the individual responsibility of high-ranking officials (Combs, 2018: 259). 2 This unique knowledge makes insiders indispensable to international criminal investigations and prosecutions (Chlevickaite and Hola, 2016).…”

“…Because of their links with the criminal organizations, insiders often present special concerns regarding their credibility and the reliability of their testimony (Chlevickaite and Hola, 2016: 675; Chlevickaite et al, 2020; Combs 2017). Furthermore, insiders occupy a particular position as quasi-experts, providing overview testimony and placing various individuals and their actions into context, which increases the chances that an insider can influence the overall narrative of the case (Roth, 2016: 782).…”

“…Hence, heavy reliance on insiders may lead to increased factual uncertainty, a well-documented issue in both domestic and international criminal proceedings (Cryer, 2014; Kelsall, 2009; Roth, 2016). The difficulties in both procuring credible insiders and effectively assessing their testimonies constitute a fundamental problem at the ICCTs: major cases have fallen apart at least partly owing to insider credibility concerns, hindering the ability of the courts to get to the truth and hold those most responsible to account (for example, Prosecutor v. Kenyatta , 2014; Chlevickaite and Hola, 2016).…”

“…Existing scholarship, though constrained to individual institutions, cases and specific aspects of witness testimony, has identified the challenges faced by those evaluating international witnesses, for example, cultural barriers, linguistic misunderstandings, time lapses, a lack of material for independent corroboration (Combs, 2018; Kelsall, 2009). Further, researchers have found indications of a lack of attention by the judges to factors specific to international crime (such as trauma and time lapse) in relation to insider witnesses (Chlevickaite and Hola, 2016) and a strong focus on testimonial consistency (Combs, 2017). In relation to the general approach to witness assessments at the ICCTs, a recent examination uncovered a relatively consistent framework of criteria emphasized in the judgments at the modern ICCTs, containing factors related to witness truthfulness, competence and the quality of the information provided (Chlevickaite et al, 2020).…”

“I Would Prefer to Be Famous”

“…4. See Brechtken (2017) for a thorough and detailed account of this research, its results and the damning conclusion to be drawn for the perpetrator as contemporary witness (see also Chlevickaite & Hola, 2016). This does not only concern Speer's involvement as minister of armament, but his acquisition of Jewish property, art looted from occupied countries, and his business.…”