Lawyers Divided Over ICC Witness Preparation

As the first trial at the International Criminal Court, ICC, gets under way, the question of how to prepare witnesses for sharing their painful stories in court is dividing lawyers and judges.



After a prosecution witness in proceedings against Congolese militia leader Thomas Lubanga temporarily withdrew his testimony, observers suggested he had not been properly prepared before appearing in court.



Lubanga is accused of enlisting and conscripting children under the age of 15 to fight in his ethnic Hema militia, allegedly using them to kill members of the rival Lendu group or employing them as his bodyguards.



The first witness to testify in the trial – which got under way on January 26 – began to tell judges about his experiences of having been used as a child soldier by Lubanga’s militia.



However, after giving evidence for a few minutes, he then recanted, telling judges he’d worked as a mechanic, and had been told by an NGO what to say to ICC investigators.



A few days later, he reappeared in court, reverting to his original testimony that he had in fact been a child soldier.



Explaining how he felt when he first changed his testimony, the witness told deputy prosecutor Fatou Bensouda, “A lot of things went through my mind. I got angry and I wasn’t able [to testify].”



While no-one knows what made the witness change his evidence in this way, some suggest that he could have been overwhelmed by the experience of appearing in court, and should have been offered more guidance beforehand.



People called as witnesses to the ICC have normally either experienced atrocities themselves or seen them committed against others.



Their decision to travel to The Hague and recount intimate details of what happened, in a sterile courtroom full of strangers, is immeasurably brave.



As the charges in the Lubanga trial relate to events that took place between 2002 and 2003, some of the 31 prosecution witnesses set to testify may find that their recollection of events from seven years ago is a little hazy.



To overcome some of these challenges faced by witnesses, lawyers interviewed by IWPR are calling for the introduction of “witness proofing”.



This is the practice of either prosecution or defence lawyers going through salient aspects of their witnesses’ testimony with them in order to help them prepare for trial.



They point out that all witnesses to appear in the Lubanga trial so far have seemed to struggle to understand questions put to them. They argue that preparing witnesses to testify could help speed up proceedings, and prevent confusion, misunderstandings, and the retraction of evidence.



However, others warn that helping people to prepare before they testify could influence the evidence they give, and could also cause more trauma for witnesses by forcing them to go through their stories several times.



The court’s rules do not specifically mention proofing practices, leaving it up to judges to decide the approach taken in each case.



Back in November 2006, pre-trial judges banned proofing in the Lubanga case, as they ruled that it could influence oral testimony given in court.



Prosecution lawyers protested at this decision, arguing that they should be allowed to spend time with witnesses to prepare them before their court appearance.



During an open court session on October 30, 2007, former prosecution trial attorney Ekkehard Withopf said that proofing resulted in “more accurate, more complete, orderly, and efficient presentation of evidence”.



He pointed out that this is a well-established practice in many national jurisdictions, including the US and Canada, as well as in international courts, including the Special Court for Sierra Leone.



Withopf explained that during proofing sessions, a lawyer will alert witnesses to the areas of their statements that will be focused on in court, and show them potential exhibits, documents or video footage that they may be asked to comment on.



Witnesses, he said, may have endured years of hardship since first giving their testimony to investigators. Once they arrive in The Hague, they may need help to refocus on the particular experiences they will be asked about.



“They need to accommodate to a new situation, to a highly technisised courtroom, to the fact that they appear in a formal setting and in a formal language, and most importantly, many of these witnesses over the last years were exposed to living conditions that were very harsh,” he said.



Withopf dismissed the notion that holding proofing sessions with prosecution witnesses would put defence lawyers at a disadvantage, stressing that any potentially exculpatory evidence to emerge from the session – which could be used by the defence to fight charges against Lubanga – would automatically be sent to them.



However, the defence objected to the introduction of the procedure, saying that proofing could segue into coaching witnesses on what responses to give to questions, thus prompting less genuine answers.



Lubanga’s lawyer Catherine Mabille argued that proofing would be “useless not to say suspicious”.



She added that suspending contact between the witness and the prosecutor prior to the examination-in-chief would “protect the sincerity of the testimony”.



The trial chamber eventually ruled on November 30, 2007, to prohibit lawyers from meeting and talking with witnesses once they arrive from the Democratic Republic of Congo, DRC, to testify in court in The Hague and going through aspects of their testimony with them.



“[Judges are] not convinced that either greater efficiency or the establishment of the truth will be achieved by these measures,” said presiding judge Sir Adrian Fulford, who added that proofing could lead to a “distortion of the truth”.



“The spontaneous nature of testimony can be of paramount importance to the court’s ability to find the truth, and the trial chamber is not willing to lose such an important element in the proceedings,” he concluded.



Instead, Fulford tasked the ICC’s Victims and Witnesses Unit, VWU, which is independent from both the prosecution and defence, to help witnesses prepare for giving testimony.



Unit staff members now show witnesses a video to familiarise them with courtroom procedure and also take them into the court before their examination-in-chief.



"The judges made the decision that the VWU is responsible for [this] familiarisation [of witnesses]. [Chief prosecutor Luis] Moreno-Ocampo respects this decision and the way the VWU has carried out its mission. We will abide by the decision,” said advisor to the prosecutor Beatrice Le Fraper Du Hellen.



But lawyers interviewed by IWPR say that these methods are inadequate to prepare witnesses for court.



Lawyer Luc Walleyn, who is representing victims in the Lubanga trial, pointed out that under current practices, witnesses are not allowed to see the hearing or follow the trial before they testify, out of an excessive concern with protecting the integrity of evidence.



“It is considered that if they do so their evidence can be corrupted by the fact they’ve seen others, but this can be good preparation for a witness to see how others are questioned,” he said.



While they can show each witness a copy of his or her statement, or have it read out if witnesses are illiterate, VWU staff members are forbidden from discussing evidence with them or directing them to a particular part.



But investigators on the ground often take extensive statements about a whole range of experiences when they talk to witnesses, and those called on to testify are likely to only be questioned on a small part of their statement which relates to the particular charges being prosecuted.



Lawyers argue that allowing them to help witnesses prepare is an effective way of ensuring they will be ready for the kind of questions they will be asked in court, helping them to reveal the truth of what happened.



It also makes court appearances less traumatic for witnesses, as lawyers can quickly move through the examination-in-chief without having to stop and explain what they mean by a question.



“Proofing can help witnesses understand a question. They don’t need to offer more or hold back, but simply tell the truth,” said a Hague-based international lawyer, who preferred not to be identified.



“We can tell them to take it question by question, and that lawyers in court will ask them questions about all that needs to be said, so they can get through their testimony with minimal trauma.”



The lawyer pointed out that many years may have passed since the original witness statement was taken, and this may have included information not directly relevant to the case.



Allowing the prosecutor who will question the witness in court go through their testimony with them in advance means that they can go over the events relevant to the charges, thus making the evidence more focused.



“Proofing helps to streamline and make the testimony more efficient, compact, and appropriate for trial. It avoids waste of time, shock and surprise,” said the lawyer.



Experts rejected the judges’ notion that preparing a witness for their time in court could undermine the spontaneity of their evidence.



They point out that spontaneity is difficult to achieve with war crimes witnesses in any case, as they have already been interviewed countless times by NGOs, relief agencies and government entities before they arrive in The Hague.



“The opportunity for spontaneity – if you mean getting them to talk like they’d just emerged from Zalingi [in western Sudan having experienced] an attack by gunships – that’s been gone long before they arrive,” said Raymond Brown, a US-based lawyer representing Darfur victims at the ICC.



Many witnesses appearing before the court are from remote areas and have no formal education, meaning that they struggle to understand some of the legal questions put to them, said Brown.



In order to cope with an examination-in-chief, they need to spend time with lawyers who can explain to them the ways in which questions will be phrased, helping them understand what is really being asked of them, he argued.



Alex Whiting, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia, ICTY, argued that preparing a witness meant that judges were more, rather than less likely to hear the truth.



“It is through careful preparation and handling that you will get to the truth. If you throw the witness in the courtroom, they may be spontaneous, but not forthcoming or open,” he said.



It also means that witnesses are more familiar with the lawyers who will lead the questioning.



“It is important they spend time before they go to court with the prosecutor who is going to question them. Without that, it will be too unfamiliar, and witnesses less able to articulate what happened to them or what they witnessed,” said Whiting.



Meeting the prosecutor before an examination-in-chief can be enormously reassuring for witnesses – who have travelled thousands of miles to testify in a strange, intimidating environment, say some commentators.



“The individual coming into the court in The Hague feels alienated from the courtroom, despite having been shown it by the VWU,” said Carla Ferstman from victims’ rights group REDRESS.



“Everyone looks foreign and it is nerve-wracking. The prosecution will look as formal as the judge. It is more a question of getting them to meet these people in advance, which could help to allay nervousness.



“Finding a way to put the victim at ease is really important.”



However, others warned against fully embracing all proofing practises, arguing that going over evidence with a witness too many times could be traumatic.



Walleyn cited the example of the former child soldier who temporarily withdrew his testimony in the case.



The young man was in The Hague for a fortnight – which can seem like a long time, when confronted by so many new experiences, according to the lawyer.



“If you add to this another week of witness proofing, where they have to be questioned in detail, this could be a new element of hardship,” he said.



Despite these concerns, Walleyn argued that lawyers could get involved in elements of the familiarisation procedures to assist witnesses in giving evidence.



For instance, he said that lawyers could be allowed to read through statements with witnesses to re-familiarise them with the content, and direct them to the more salient parts, without allowing this to segue into coaching them on how to answer specific questions.



“Counsel could do this without influencing what is said,” he argued. “This is not killing spontaneity, but could help the evidence if the lawyers do their jobs in the proper way.”



Meanwhile, others suggested that several additional factors must also be considered when ensuring a witness is ready and able to testify.



Ferstman said it is important to make the witness feel safe to tell their story in court. She cited the example of the former child soldier, called upon to testify against his alleged former commander, to illustrate her point.



“My concern was more that the witness had to look into the eyes of Lubanga on the first day he testified. Did that have more of an impact that a lack of witness proofing? Possibly,” she said.



When the witness took the stand the second time, the curtain which is used to shield him from public view was pulled a little further around, to prevent him from having to make eye contact with Lubanga. However, the accused was still able to watch the witness testify on a video screen.



Ferstmann said another problem which could hinder testimony is the confusion shrouding the issue of self-incrimination, and whether witnesses may be liable for war crimes prosecutions back home based on what they say at the ICC.



Some commentators have suggested that the first Lubanga witness withdrew his testimony because he was asked several times, when being sworn in, whether he understood that anything he said in court could incriminate him back in the DRC.



He was also reminded by judges to be very careful not to mention the names of friends he was with when the events took place.



This prompted a confused exchange between judges and lawyers in court as to whether evidence revealed by former child soldiers could be used in future national prosecutions.



On January 30, prosecutors wrote to judges saying it is not necessary to warn former child soldiers about the risk of self-incrimination, because “children, by virtue of their age at the time of the facts, do not face the possibility of prosecution in the DRC or elsewhere”.



Prosecutors also quoted aspects of the ICC’s statute detailing immunities for witnesses, saying, “The evidence they give cannot be used against them in a subsequent prosecution.”



Walleyn says “it is regrettable this issue came up at the last minute, but it is a risk with a new court”.



Katy Glassborow is an international justice reporter at The Hague. Rachel Irwin, an IWPR reporter in The Hague, also contributed to this report.