International Criminal Procedure

International Criminal Procedure

The Interface of Civil Law and Common Law Legal Systems

Edited by Linda Carter and Fausto Pocar

The emergence of international criminal courts, beginning with the International Criminal Tribunal for the former Yugoslavia and including the International Criminal Court, has also brought an evolving international criminal procedure. In this book, the authors examine selected issues that reflect a blending of, or choice between, civil law and common law models of procedure. The topics include background on civil law and common law legal systems; plea bargaining; witness proofing; written and oral evidence; self-representation and the use of assigned, standby, and amicus counsel; the role of victims; and the right to appeal.

Chapter 3: Witness proofing

Hannah Garry

Subjects: law - academic, comparative law, criminal law and justice, public international law, politics and public policy, terrorism and security


The practice of witness proofing has been one of the more polarizing procedural issues litigated before international criminal tribunals. Generally speaking, this practice encompasses preparation of witnesses for giving testimony by the parties to a case. Much of the debate over proofing has centered on who should be allowed access to witnesses pre-testimony and what should be the nature of their interaction with the witnesses before giving evidence at trial. However, witness proofing has not always been so controversial in international criminal law. With the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and International Criminal Tribunal for Rwanda (ICTR) in 1994, parties practiced proofing as a matter of course without challenge for the first decade. It was not until 2004, in the ICTY’s Limaj et al. case, that the practice was first contested by the defense on grounds that it breached fair trial rights. The Trial Chamber flatly rejected the motion, noting in particular the longstanding and widespread practice of witness proofing at the Tribunal and in adversarial jurisdictions generally.

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