While the proofing by the parties has been approved by the judges of ad hoc Tribunals, the ICC Trial Chamber in the Lubanga case found that this practice shall not be used in the Court.
Recently, in the Bemba case, the majority of the Trial Chamber reiterated approach taken by the Lubanga Chamber.
Judge Kuniko Ozaki disagreed with the majority and opined that the proofing witnesses by the parties might be necessary in the ICC cases.
She noted that witnesses who will testify before the Chamber come from places far away from The Hague and are not necessarily familiar with the “Western” way of questioning or with court systems in general.
The judge also observed that the witnesses give evidence on events which occurred a number of years ago and their statements were also given months, or even a few years ago. Sometimes those statements were taken before the confirmation of charges, by investigators without legal training or without precise directions regarding specific crime-related evidence to be collected, resulting in statements which lack the degree of specificity required to prove that the crimes charged were committed.
The judge concluded that without proofing, there is an increased likelihood that the evidence given by the witness will be incomplete, confused and ill-structured.
Furthermore, in the opinion of the judge, the Chamber would have considerably benefited from witness proofing, considering the scale, complexity, geographical and temporal scope of the case and cultural and linguistic remoteness from the Court as well as the particular vulnerability of the witnesses.
In order to address potential risks associated with proofing, the judge suggested such safeguards as video-audio recording of the proofing session, presence of a third party such as a representative from the Victims and Witness Unit, and specific training of lawyers for the purpose of proofing.
The judge also opined that it would also be possible for the Chamber to designate a lawyer from the prosecution, other than the trial lawyer examining the witness in court, in order to conduct proofing if there is an apparent risk of contamination of the evidence, but where proofing is nonetheless considered preferable.
Bemba, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Case No. ICC-01/05-01/08, T. Ch, 24 November 2010.