Publication Type

Journal Article

Version

publishedVersion

Publication Date

3-2012

Abstract

This paper analyses the critical influences on witness-based truth-telling for judicial decision-making in the international criminal tribunals. The judicial fixation on witness testimony reflects the weight and legitimacy given to personal testimony before international courts. This weight must be balanced by the awareness that a witness may provide false testimony intentionally, or may be coaxed by third parties to provide such testimony, as has been evidenced recently before the ICC. If witness testimony is tainted then its capacity to endorse the truth-finding function of the court is compromised. As a consequence the ability to assert that the tribunal is a ‘moral court’ based on empirical truth in such circumstances is jeopardized. The nexus between witness testimony, truth, the morality of judicial determinations, and the legitimacy this affords is explored in what follows. We question whether simple assertions that witness testimony, tested through adversarial examination, produces truth and resultant morality, are all they seem. The analysis also critiques the forensic reality of witness testimony before the international tribunals. Ultimately the paper suggests that while truthful testimony is crucial if international criminal trials are to produce legitimate judicial determinations, the naïve claim to a moral court as a consequence of tested witness testimony is problematic at least and unsustainable at best.

Keywords

International Criminal Court, truth, legitimacy, witness testimony, judicial discretion, selective prosecution, moral court

Discipline

Comparative and Foreign Law | Criminal Law | Human Rights Law

Publication

Global Journal of Comparative Law

Volume

1

Issue

1

First Page

73

Last Page

101

ISSN

2211-9051

Identifier

10.1163/2211906X-00101003

Publisher

Martinus Nijhoff

Copyright Owner and License

Authors

Additional URL

http://doi.org/10.1163/2211906X-00101003

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