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  • Jun 01, 2019
    Witnesses play a crucial part in international criminal proceedings. Unlike the Nüremberg trials which relied primarily on documentary evidence, modern day international criminal trials rely on witnesses to provide the majority of the information. A testimony not only enables the judges to render a fair judgement, it also helps the people of the region and the international community to learn the truth about the crimes committed and to deter persons from committing these crimes again. By testifying, witnesses make a necessary and valuable contribution to the restoration of justice and reconciliation in the region. In addition to that, testifying at the Tribunal also provides an opportunity for victims to describe what happened to them.   When it comes to testifying, one must differentiate between two segments: the “investigation stage” and the “trial stage”. During the former, investigators will speak to numerous witnesses in an attempt to establish what happened. However, not all individuals interviewed during the preparation of a case will be called to testify in the courtroom. The prosecution and the defence will determine the most appropriate witnesses to appear before the judges.   There are several types of witnesses who can testify before the Court.  Fact witnesses have knowledge and testify about what happened. They can be crimes-based witnesses when they have suffered harm and testify as witnesses about what happened to them. Some of these witnesses can also hold the status ofparticipating victims before the Court; they are called dual-status witnesses.  Insider witnesses have a direct connection with the accused. Expert witnesses testify about matters within the field of their expertise, for example, ballistic or forensic experts. Overview witnesses help establish facts about the context in which a conflict occurred, and can include, for example, professors or NGO representatives. These witnesses can be called, or asked to give testimony, by the Office of the Prosecutor, the Defence, the Legal Representative of Victims, or the Judges themselves. Oral testimony The witness is physically present in court and will tell the court what he or she saw or heard, or what he or she knows of the accused or other events upon which he or she is being questioned. In exceptional circumstances, if for example a witness cannot travel, he or she may give evidence away from the seat of the Tribunal by way of live video-conference link. DepositionIn exceptional circumstances, a witness may be asked by the court to give evidence by way of deposition. A deposition can either be taken in The Hague or elsewhere by a representative of the court in the presence of the prosecution and the defence. The party who has not requested the deposition shall have the right to cross-examine the person whose deposition is being taken. The proceedings will be recorded, at least on audio tape. Evidence in the form of a written declarationThe court may, in certain circumstances, admit evidence in the form of a written declaration. An official authorised to witness such a declaration shall be present. The court may nevertheless decide whether the witness is required to appear in court for further questioning. The side that brought the witness (either the prosecution or the defence) begins by asking the witness questions. This is referred to as “direct examination”. When the prosecution or defence is finished with the direct examination, the other side is allowed to question the witness. This is called the “cross-examination”. Afterwards, the side that brought the witness to the stand may ask him or her some more questions related to issues raised in the cross-examination. This is known as “re-direct examination”. According to the Rules of Procedure and Evidence, the judges may also ask questions at any time during the witness testimony.   The Court has a number of protective measures that can be granted to witnesses, victims who appear before the Court and other persons at risk on account of testimony given by a witness. The Court's protection system is based on best practices which are aimed at concealing the witness's interaction with the Court from their community and from the public in general.   Protective measures where witnesses reside aim to limit the witness's exposure to threats or provide an appropriate response to an identified threat. Measures must be proportional to the risk. When there are multiple suitable and available options for protective measures, the Court will choose those that are the least intrusive on the witness's well-being. These measures could include local protection measures, an assisted move or various security arrangements aimed at addressing the identified threat. Witness relocation is only used as a last resort, due to the immense burden this puts on the witnesses and their families.   One particular form of support for witnesses who come to the ICC to testify in Court is the process of "Courtroom familiarization", during which, the Registry staff members show them the Courtroom in advance, before the hearing starts, to allow them to sit in the witness stand for the first time and become familiar with the Courtroom. The staff members explain where the Defence, the Prosecution, Legal Representatives of Victims (where applicable) and Judges will sit during the hearing. They also test out the computer screens and microphones together with the witness, and answer any practical questions the witness might have. They do not discuss with them any element of their testimonies. The Registry will also see if any particular measures would be needed to ensure that the witness can testify in a secure manner and also takes into consideration their privacy, dignity and well-being.
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