LEGALANALYSIS OF THE PROHIBITION OF WITNESS PROOFINGIN THE INTERNATIONAL CRIMINAL COURT

Abstract

This article examines the legal regulation of the procedural stage of witness proofing within the system of the International Criminal Court. Legal system of the International Criminal Court can be called as a compromise between the Anglo- Saxon and Romano-Germanic law systems. However, the process of cases hearing is more typical to the Anglo-Saxon law system. In countries, that belong to the Anglo-Saxon law system, in particular the United Kingdom, the United States, and Australia, witness proofing by the prosecution constitutes an integral part of the process. Its purpose is to prepare the witness emotionally and psychologically for the hearings, during which he will testify about certain events. Taking into account, that during the hearings witnesses have to relive tragic events, and that they also have to meet the accused face to face, this can negatively affect their emotional state and ability to properly testify. However, in the legal system of the International Criminal Courtthe witness proofingis not regulated at all neither in the Rome Statute, nor in the Rules of Procedure and Evidence or Regulations of the Court.However, the Pre-Trial Chamber and the Trial Chamber forbade the practice of witness proofing by the parties during the hearings of the very first case, namely Lubanga case. Accordingly, this article examines the relevant decisions and arguments of the Pre- Trial Chamber and the Trial Chamber. According to the author, these decisions do not contain a proper justification for the imposed ban, nether they are convincing. Moreover, the author believes that the practice of witness proofing is necessary for the International Criminal Court, as in most cases the witnesses are victims, who have suffered from the most serious international crimes in their lives: genocide, crimes against humanity or war crimes. However, the study found that this prohibition could not be considered as absolute, since judicial precedent is not formally a source of law for the International Criminal Court, and Article 64.3 (a) of the Rome Statute provides, that the Trial Chamber may “adopt such procedures as are necessary to facilitate the fair and expeditiousconduct of the proceedings”.Nonetheless, this article has never been applied in practice. Therefore, the Office of the Prosecutor should, after the Trial Chamber is composed for hearing of each case, make appropriate motionsaccording to this article 64.3 (a)with the request to permitwitness proofing, justifying it by the need for a fair and expeditious procedure.