Part II of my posts on the difficulties raised when international justice encounters “foreign” cultures (see Part I here) – or to be more exact, cultures and cultural paradigms it is not familiar with – is due to the fascinating conference I attended this evening at the T.M. C. Asser Institute as part of their Supranational Criminal Law Lectures series, which featured Professor Nancy Combs of William & Mary Law School.
The conference was about Professor Combs’ latest book, titled rather provocatively “Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions” (Amazon link here, Professor Combs’ presentation of the book over at the IntlLawGrrls blog here). So it was an exercise in self-promotion, but it was so fascinating, Professor Combs’ work is so original and well thought-out, and she is such a great speaker, that I can only forgive her. Besides, everyone’s got to make a living, even academics. And it’s such a pleasure to finally put a face on the articles I’ve read by Professor Combs during my LLM. So yes, I’m quite under the charm.
This post gathers a recollection of what I heard tonight, with the help of my notes. It’s a mix of what Professor Combs said, more or less paraphrased, and even extrapolated at times as I insert some of my own thoughts. I do not speak for Nancy Combs – and be warned that I might have gotten something wrong, or interpreted her words in a subjective and/or incorrect manner. In any case, do not challenge me on what Professor Combs might have said – and if in doubt, I can only recommend that you check out her book. I certainly will.
Professor Nancy Combs’ work is called “Fact-finding without facts”, and is based on her work and analysis of “thousands of pages of transcripts” (her words) from the Special Court for Sierra Leone (SCSL), the International Criminal Tribunal for Rwanda (ICTR), and the East Timor Special Panels.
Her thesis, as she presented it, is that trial chambers have considerable difficulty in finding out who did what to whom in International Criminal Tribunals. More particularly, she looked at tribunals that had to deal with situations in which there were few written, documented evidence, and in which witnesses came often from uneducated and culturally radically different backgrounds, and how the Courts had to deal with relatively less reliable testimony.
She remarked that due to these backgrounds, witnesses often had difficulty answering questions before the Courts or Tribunals relating to dates, distances, duration and numbers, and maps and sketches. Consequences of these, argues Professor Combes citing examples in each case, is that Chambers have greater difficulty in detecting inconsistencies and assessing what weight to give to testimonies.
Professor Combs also cited cases in which witnesses had difficulties understanding the questions that were put to them, and the necessity sometimes that compound questions be broken up in shorter, simpler questions. She gave examples of witnesses giving completely mismatched answers in relation to the questions asked.
Another issue was that of inconsistency between the statements taken and the testimony given before the Court, sometimes going as far as the Defendant’s involvement in the actual crime. According to Professor Combs’ assessment, about 50% of witnesses in the cases she has studied have acted in a manner she qualifies as “seriously inconsistently”.
Professor Combs then moved to identify what she considered to be the causes of such problems:
- education (illiteracy, lack of schooling);
- language interpretation
- errors committed by investigators, due to laziness, incompetency, or, again, bad translation – this time over the course of the investigation;
- cultural differences: not all cultures give as much importance to objective measures as Western cultures, and there are differences of style in answering the questions. Another interesting point Professor Combs made related to cultural taboos. She particularly cited an example in front of – if I remember correctly – the East Timor Special Panels, in which a cultural taboo on mentioning the name of a dead person led to a particularly frustrating exchange between a Prosecutor and a witness.
- Lying. It happens, for various reasons.
So what do Tribunals do about this, according to Professor Combs? They tend to be somewhat more tolerant than national courts, case law shows that they prefer in-court testimony over statements, and have a curious practice of refusing the testimony on certain issues as unreliable, and yet accept over parts of that same testimony.
Professor Combs then moved on to making suggestions as to why the Judges did this? And this is where it gets really interesting. She points out to a tradition started with Article 9 of the Charter of the International Military Tribunal of Nuremberg – a form, if I understood correctly, of “Joint Criminal Entreprise”, that allowed many members of the Nazi party to be effectively condemned, despite a lack of evidence regarding a direct link with the crimes perpetrated.
Although there is no equivalent of “article 9” in modern international criminal tribunals’ statutes, a tradition remained: Judges tend to infer from the Defendant’s position within the overall context his or her degree of responsibility. And citing cases of acquittals in front of the ICTR, Professor Combs remarked that the best defence is not so much to find ways to contradict – if possible – a witness’ often unreliable testimony, but to offer compelling evidence showing that the Defendant actively tried to prevent the atrocities, or to avoid being linked and/or involved.
As a true academic, Professor Combs did not stop at identifying problems: she also offered potential solutions to explore to counter these issues:
- better interpretation – again, the importance of the quality of interpretation is undeniable in rendering a fair justice (see Part I for similar issues arising at the ICC)
- a better documentation of statements given by witnesses;
- more on-site visits;
- publicize and punish perjury – although Professor Combs remarked that international tribunals were strapped for cash, and had probably other priorities. That being said, she insisted that Tribunals should try to deter future perjury however they could.
But, Professor Combs concluded, even these won’t solve all the problems, and we might want to consider more radical approaches. One of them being rather thought-provoking: a more open and recurrent recourse to the Joint Criminal Entreprise theory. Although she did not have time to go deeper in explaining her views on the matter, the issue of the standard of proof and the “reasonable doubt” standard – and whether we should lower, or at least, rethink them – was raised.
Q&A was also very interesting, especially with the intervention of a Judge from SCSL (I love being in The Hague). I did not catch the name of the Judge (I’m not sure she mentioned it – from the photo, I believe it was Judge Julia Sebutinde, but I could be wrong), but she was very interesting and mentioned some answers on two different issues:
- on the issue of consistency, she remarked that as a Judge, she was confronted to two types of inconsistencies: minor and major ones. Regarding the minor inconsistencies, those can often be explained. But on the major inconsistencies, the judge remarked that more often than once, she encountered witnesses who gave the statements in a language the interpreter was not competent to translate, hence the errors in the statements. As to why they sometimes accept parts of a testimony and refuse others, the judge remarks that they often take into account corroboration with the testimonies of other sources;
- on the issue of perjury, she remarked how difficult it was to investigate and prove.
Some concluding remarks of my own. I had never encountered or thought about the issues raised here, or about the perspective Professor Nancy Combs offered on the matter. But I found them deeply intriguing and thought-provoking. The problems that international justice – who works from a certain number of predetermined paradigms, often finding their origins in the Western ideal of justice – encounters when dealing with different cultures is something international lawyers need to think of, without any taboo, in order to make international justice more effective, fairer, and ultimately, more legitimate.