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The Admissibility and Weight of Written Witness Testimony in International Criminal Law: A Socio-Legal Analysis

Published online by Cambridge University Press:  08 November 2013

YVONNE MCDERMOTT
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Abstract

This article introduces some quantitative and qualitative analysis on the use of written witness statements in lieu of oral testimony at trial to assess in practice the impact of the rules on the admissibility of written witness testimony before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone. It traces pieces of evidence admitted under the newer, more liberal, rules on written witness testimony from admissibility to judgment, to establish what impact, if any, these rules have had in practice and whether the critique that such rules might jeopardize fair-trial standards has been realized. The analysis illustrates that the newer rules on admissibility are used with relative infrequency in some tribunals, but that the admission of such statements could raise the question of equality of arms in others, given that the more liberal rules on written statements tend to be used more frequently by the prosecution than by the defence. It will be shown that some chambers have continued to emphasize the importance of oral testimony and have taken a very cautious approach when weighing written testimony, whilst others have suggested that written testimony that was not subject to full cross-examination should not, in principle, be given less weight than oral testimony. The ‘totality of the evidence’ approach in weighing the evidence will be analysed from a practical standpoint, and it will be shown that recent Appeals Chamber jurisprudence suggests that trial chambers may need to take a more particularized approach to pieces of evidence in the future.

Keywords

international criminal procedureevidencefair trialoralitywitness testimony
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals: Symposium: Expertise, Uncertainty, and International Law
Information
Leiden Journal of International Law , Volume 26 , Issue 4 , December 2013 , pp. 971 - 989
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 Prosecutor v. Kordić and Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2-AR73.5, A. Ch., 21 July 2000; and Prosecutor v. Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, IT-95-14/2-AR73.5, A. Ch., 18 September 2000. For a more in-depth analysis, see Fairlie, M., ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’, (2003) 34 California Western International Law Journal 47, 70–4Google Scholar; R. May and M. Wierda, International Criminal Evidence (2002), 108, at 210–18; and Wald, P., ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harvard International Law Journal 535Google Scholar, at 541–8.

2 Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 17 November 1999, UN Doc. IT/32/Rev.17.

3 Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32/Rev.48, 28 November 2012.

4 Rules of Procedure and Evidence of the Special Court for Sierra Leone, 30 October 2003.

5 Rules of Procedure and Evidence of the Special Court for Sierra Leone, 14 March 2004.

6 Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, UN Doc. ITR/3/Rev.12, 6 July 2002.

7 Prosecutor v. Milošević, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of a Written Statements, IT-05-54-AR73.4, A. Ch., 30 September 2003. See further, Kay, S., ‘The Move from Oral Evidence to Written Evidence: “The Law Is Always Too Short and Too Tight for Growing Humankind”’, (2004) 2 JICJ 495Google Scholar, at 500.

8 Rules of Procedure and Evidence of the Special Court for Sierra Leone, 24 November 2006.

9 Prosecutor v. Milutinović et al., Decision on Prosecution's Rule 92 bis Motion, IT-05-87-PT, T. Ch. III, 4 July 2006, at para. 4.

10 Ibid., at paras. 18–22.

11 Rules of Procedure and Evidence, UN Doc. IT/32/Rev.39, International Criminal Tribunal for the Former Yugoslavia, 13 September 2006.

12 Prosecutor v. Milutinović, Decision on Second Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, IT-95-87-T, T. Ch. III, 5 March 2007, at para. 8.

13 Rules of Procedure and Evidence of the Special Court for Sierra Leone, 14 May 2007.

14 The Trial Chamber's 2008 judgement discusses some of the difficulties posed in obtaining witness testimony and measures taken to secure witnesses in Prosecutor v. Haradinaj et al., Judgement, IT-04-84-T, T. Ch. I, 3 April 2008, at paras. 22–28.

15 Beqa Beqaj, a relative of one of the accused individuals, was convicted of wilfully interfering with a witness in the Limaj et al. case in 2005: Prosecutor v. Beqaj, Judgement on Contempt Allegations, IT-03-66-T-R77, T. Ch. I, 27 May 2005.

16 Report of the International Tribunal for the Former Yugoslavia, UN Docs. A/65/205 and S/2010/413, 30 July 2010, at para. 23.

17 Rule 92 quinquies, Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32/Rev.44, 10 December 2009.

18 For example, Wald, supra note 1, at 551–3; Fairlie, supra note 1, 70–83; Jackson, J., ‘Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial–Inquisitorial Dichotomy’, (2009) 7 JICJ 17Google Scholar, at 30–3; Murphy, P., ‘No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence Is a Serious Flaw in International Criminal Trials’, (2010) 8 JICJ 539Google Scholar, at 551–2 and 567–72; DeFrancia, C., ‘Due Process in International Criminal Courts: Why Procedure Matters’, (2001) 87 Virginia Law Review 1381CrossRefGoogle Scholar, at 1397–9 and 1424–30; O'Sullivan, E. and Montgomery, D., ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’, (2010) 8 JICJ 511Google Scholar; and Rohan, C., ‘Rules Governing the Presentation of Testimonial Evidence’, in Khan, K.et al. (eds.) Principles of Evidence in International Criminal Justice (2010), 499Google Scholar, at 522–4. N. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010), examined evidential inconsistencies before the ICTR, SCSL, and Special Panels (Dili) with great mastery, but her analysis is focused on the content of (primarily oral) testimony, whilst the present article analyses the form of witness testimony and whether the form of written witness testimony does have an impact on its ultimate weight in judgments in practice.

19 ECtHR case law includes relevant decisions on this right: Unterpertinger v. Austria (1991) 13 EHRR 175, 24 November 1986; Doorson v. The Netherlands (1997) 23 EHRR 330, 26 March 1996; Saïdi v. France (1994) 17 EHRR 251, 20 September 1993; Lüdi v. Switzerland, Appl. No. 12433/86, 15 June 1992; Luca v. Italy (2003) 36 EHRR 46; Kornev and Karpenko v. Ukraine, Appl. No. 17444/04, 21 October 2010; Al-Khawaja and Tahery v. UK (2009) 49 EHRR 1, 20 January 2009; and Al-Khawaja and Tahery v. UK (2012) 54 EHRR 23, 15 December 2011.

20 Prosecutor v. Taylor, Judgment, SCSL-03-01-T, T. Ch. II, 18 May 2012 (‘Taylor Judgment’).

21 Prosecutor v. Ndindiliyimana et al., Judgement, ICTR-00-56-T, T. Ch. II, 17 May 2011 (‘Ndindiliyimana et al. Judgement’); Prosecutor v. Nyiramasuhuko et al., Judgment, ICTR-98-42-T, T. Ch. II, 24 June 2011 (‘Nyiramasuhuko et al. Judgement’); Prosecutor v. Ndahimana, Judgement, ICTR-01-68-T, T. Ch. II, 30 December 2011 (‘Ndahimana Judgement’); Prosecutor v. Gatete, Judgement, ICTR-00-61-T, T. Ch. III, 31 March 2011 (‘Gatete Judgement’) and Prosecutor v. Karemera and Ngirumpatse, Judgement, ICTR-98-44-T, T. Ch. III, 2 February 2012 (‘Karemera et al. Judgement’).

22 Prosecutor v. Đorđević, Judgement, IT-05-87/1-T, T. Ch. II, 23 February 2011 (‘Đorđević Judgement’); Prosecutor v. Gotovina et al., Judgement, IT-06-90-T, T. Ch. I, 25 April 2011 (‘Gotovina et al. Judgement’) and Prosecutor v. Perišić, Judgement, IT-04-81-T, T. Ch. I, 6 September 2011 (‘Perišić Judgement’).

23 See, e.g., Mundis, D., ‘From “Common Law” to “Civil Law”: The Evolution of the ICTY Rules of Procedure and Evidence’, (2001) 14 LJIL 367, 374CrossRefGoogle Scholar; and Pakes, F. J., ‘Styles of Trial Procedure at the International Criminal Tribunal for the Former Yugoslavia’, in van Koppen, P. J. and Penrod, S. D. (eds.), Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (2003), at 309CrossRefGoogle Scholar (comparing the judicial approaches of Judges Jorda and McDonald).

24 An unintended consequence of this selection was that, between the time of writing and publication, convictions entered at trial in two of the cases (Gotovina et al. and Perišić) were overturned on appeal. Despite the fact that hundreds of pages of the Gotovina et al. Judgement, supra note 22, discussed the commission of crimes by armed units, including those of Gotovina and Markač's subordinates, at length, as well as the proceedings of the Brioni meeting in which the removal of the Serb population of Krajina was planned and anti-Serb laws and policies implemented by the Croatian government at the time, the Appeals Judgement (Prosecutor v. Gotovina, Judgement, IT-06-90-A, A. Ch., 16 November 2012 (‘Gotovina Appeals Judgement’)) focuses almost exclusively on the ‘200 metre standard’ imposed by the Trial Chamber in assessing whether artillery strikes were sufficiently targeted on military objectives to be lawful. Although the Appeals Chamber entered into a de novo review of the evidence – albeit a rather perfunctory one, as pointed out in the Dissenting Opinion of Judge Carmel Agius, paras. 5–12 – on the basis of its findings on the ‘200 metre standard’, the Appeals Chamber judgement largely falls outside the scope of the present article. However, the judgement and the Appeals Chamber's judgement in Prosecutor v. Perišić, Judgement, IT-04-81-A, A. Ch., 28 February 2013 (‘Perišić Appeals Judgement’) both raise questions about the Appeals Chamber’s appreciation of the ‘totality of the evidence’ approach, which will be discussed in detail in section 3.2 below. In the Perišić Appeals Judgement, the chamber considered that aiding and abetting liability required that ‘specific direction’ be given towards the commission of crimes. In this light, it conducted a de novo review of the evidence and found a lack of evidence that the accused directed assistance to criminal activity in particular. Like the Gotovina et al. Appeals Judgement, the Appeals Chamber in Perišić pointed to a number of witnesses whose testimony had apparently been disregarded by the Trial Chamber because it had not been specifically cited. However, it is quite possible that these testimonies were taken into account as part of the ‘totality of the evidence’ assessed by the Trial Chambers, as shall be discussed in greater detail below.

25 Prosecutor v. Brđanin, Appeals Judgement, IT-99-36-A, A. Ch., 3 April 2007, at paras. 11–16.

26 Prosecutor v. Thomas Lubanga Dyilo, Judgement pursuant to Art. 74 of the Statute, ICC-01/04-01/06-2842, T. Ch. I, 14 March 2012 (‘Lubanga Judgement’).

27 See, e.g., Prosecutor v. Nizeymana, Decision on Nizeyimana Defence Motion for Recall of Prosecution Witness AJP or Admission of Documentary Evidence, ICTR-00-55C-T, T. Ch. III, 7 July 2011, at para. 10; Prosecutor v. Brima et al., Decision on Joint Defence Motion to Exclude All Evidence from Witness TF1-277 Pursuant to Rule 89(C) and/or Rule 95, SCSL-04-16-T, T. Ch. II, 24 May 2005, at para. 22; Prosecutor v. Naletilić and Martinović, Decision on the Admission of Witness Statements into Evidence, IT-98-34-T, T. Ch., 14 November 2001; Prosecutor v. Galić, Decision on Interlocutory Appeal Concerning Rule 92 bis (C), IT–98–29–AR73.2, A. Ch., 7 June 2002, at para. 31.

28 Prosecutor v. Kanyabashi, Decision on Kanyabashi's Three Motions to Vary His List of Witnesses and to Admit Written Statements under Rule 92 bis, ICTR-96-15-T, T. Ch. II, 24 April 2008; Gatete Judgement, supra note 21, at para. 80.

29 E.g., Prosecutor v. Haradinaj et al., Decision on Joint Defence Oral Motion Pursuant to Rule 89(D), IT-04-84 bis-T, T. Ch. II, 28 September 2011, at para. 11. The evidence of witness Kabashi from the Limaj trial was admitted under Rule 89(C) after the witness stated that he could not confirm his testimony from that trial (thereby precluding it from the remit of Rule 92 ter). The Trial Chamber confirmed that the testimony went to the acts and conduct of the accused, but stated that it would need to be corroborated by credible evidence if it were to be relied upon in coming to the final verdict (ibid., para. 13). See also, Prosecutor v. Haradinaj et al., Retrial Judgement, IT-04-84bis-T, T. Ch. II, 29 November 2012, at paras. 181–182 and para. 473.

30 Seven additional witnesses were called to testify viva voce by the trial chamber.

31 Other documentary evidence, such as code-cables and other contemporaneous documents which would normally be the purview of Rule 89(C), were admitted under Rule 92 bis. As these were not witness statements or prior recorded testimony, they have not been analysed in the course of this article.

32 Prosecutor v. Taylor, Decision on Prosecution Motion for Admission of Part of the Prior Evidence of TF1-362 and TF1-371 Pursuant to Rule 92 ter, SCSL-03-01-T-399, T. Ch. II, 25 January 2008.

33 Prosecutor v. Kanyabashi, supra note 28, at paras. 42–44; Prosecutor v. Gatete, Decision on Defence and Prosecution Motions for Admission of Written Statements and Defence Motion to Postpone Filing of Closing Briefs, ICTR-00-61-T, T. Ch. III, 24 June 2010, at paras. 16–20.

34 Prosecutor v. Karemera et al., Decision on Prosecution Motion for Admission of Evidence of Rape and Sexual Assault Pursuant to Rule 92 bis of the Rules; and Order for Reduction of Prosecution Witness List, ICTR-98-44-T, T. Ch. III, 11 December 2006.

35 Ibid., at paras. 9–21.

36 Ibid., at para. 20.

37 See, e.g., Prosecutor v. Milošević, Decision on Prosecution's Request to Have Written Statements Admitted under Rule 92 bis, IT-02-54-T, T. Ch., 21 March 2002, at para. 22; Prosecutor v. Galić, Decision on Interlocutory Appeal Concerning Rule 92 bis, IT-98-29-AR73.2, A. Ch., 7 June 2002, at para. 15.

38 Prosecutor v. Karemera et al., Decision on Reconsideration of Admission of Written Statements and Admission of the Testimony of Witness GAY, ICTR-98-44-T, T. Ch. III, 28 September 2007.

39 Ibid., at para. 23.

40 Karemera et al. Judgement, supra note 21, at paras. 1337–1424.

41 This was Witness GAY: see Karemera et al. Judgement, supra note 21, at paras. 1355–1360 and para. 1371.

42 Prosecutor v. Karemera et al., Decision on Reconsideration of Admission of Written Statements and Admission of the Testimony of Witness GAY, supra note 38.

43 Prosecutor v. Karemera et al., Order to Joseph Nzirorera to Reduce his Witness List, ICTR-98-44-T, T. Ch. III, 24 October 2008, at para. 4.

44 Ibid., at para. 11.

45 Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Motions for Admission of Written Statements and Testimony, ICTR-98-44-T, T. Ch. III, 15 July 2009, at para. 1 (‘Karemera Written Statements Decision’). Nzirorera also lodged separate motions for individual statements to be entered under Rule 92 bis: see, for example, Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Submission of Rule 92 bis Certified Statements of Gratien Kabiligi, ICTR-98-44-T, T. Ch. III, 7 April 2010; Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Motion for Disclosure of Benefits to Prosecution Witness ZF, ICTR-98-44-T, T. Ch. III, 21 October 2009; and Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Motion to Admit Testimony of Elizaphan Ntakirutimana, ICTR-98-44-T, T. Ch. III, 10 November 2008.

46 Karemera Written Statements Decision, supra note 45, at para. 115 and Prosecutor v. Karemera et al., Reconsideration of and Corrigendum to the Chamber's Decision on Joseph Nzirorera's Motions for Admission of Written Statements and Testimony, ICTR-98-44-T, T. Ch. III, 31 July 2009.

47 Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Submission of Rule 92 bis Certified Statements from Africa and USA, ICTR-98-44-T, T. Ch. III, 29 September 2009; Prosecutor v. Karemera et al., Decision Following Joseph Nzirorera's Submission of Rule 92 bis Certified Statements, ICTR-98-44-T, 10 September 2009; and Prosecutor v. Karemera et al., Decision on Joseph Nzirorera's Submission of Rule 92 bis Certified Statement of Gratien Kabiligi, ICTR-98-44-T, T. Ch. III, 7 April 2010.

48 Karemera Written Statements Decision, supra note 45, at paras. 10–23.

49 Karemera Written Statements Decision, supra note 45, at para. 9.

50 For a critique of the free-proof approach, which allows ‘almost limited galaxies’ of material to be admitted to the record which is ultimately of limited value at the final determination, see Murphy, supra note 18, 540–44.

51 ICTR and ICTY Rules 92 bis(A)(ii).

52 See, for example, Jackson, supra note 18, 29–30; and Robinson, P. L., ‘Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY’, (2005) 3 JICJ 1037Google Scholar, at 1043–46.

53 In Đorđević, 29 of the 34 prosecution witnesses whose testimony was admitted under Rule 92 bis were called for cross-examination. In Perišić, one of the three prosecution 92 bis witnesses was called for cross-examination. The 28 92 bis prosecution witness statements admitted in Taylor were admitted subject to the prosecution making the witnesses available for cross-examination by the defence. The defence waived its right to cross-examination for one witness (see Prosecutor v. Taylor, Transcript, SCSL-03-01-T, T. Ch. II, 17 October 2008, 18660), but 27 92 bis witnesses were cross-examined. Sixteen of the 98 Rule 92 bis witnesses admitted for the defence in Karemera and Ngirumpatse appeared for cross-examination.

54 See Taylor Judgment, supra note 20, at para. 201; Karemera Written Statements Decision, supra note 45, para. 25; Đorđević Judgement, supra note 22, at para. 2251.

55 Rule 92 bis(C) of the ICTY RPE states that the Rule 92 ter procedure will apply if the witness is called to testify.

56 Prosecutor v. Munyakazi, Decision on the Prosecutor's Request for Referral of Case to the Republic of Rwanda, ICTR-97-36-R11 bis, T. Ch. III, 28 May 2008, at para. 65.

57 See, e.g., Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Docs A/53/219 and S/1998/737, 10 August 1998, at para. 202; and generally R. A. Wilson, Writing History in International Criminal Trials (2011).

58 Prosecutor v. Đorđević, Decision on Prosecution's Motion for Admission of Evidence Pursuant to Rule 92 ter, IT-05-87/1-T, T. Ch. II, 10 February 2009, at para. 19.

59 Kay, supra note 7, at 500.

60 Gotovina et al. Judgement, supra note 22, at para. 16.

61 Prosecutor v. Milutinović et al., Judgement, IT-05-87-T, T. Ch., 26 February 2009, at paras. 47–48.

62 Ibid.

63 E.g. Prosecutor v. Gotovina, Transcript, IT-06-90-T, T. Ch. I, 28 April 2008, 2282–3. In Đorđević (Prosecutor v. Đorđević, Transcript, IT-05-87/1-T, T. Ch. II, 23 February 2009, 1332–40), the defence objected to last-minute changes made to witness Neraj's testimony days before testifying, and to the introduction of additional materials (namely a transcript of the witness's testimony from Milutinović) being entered along with this witness's statement under Rule 92 ter, claiming that they had not received notice of this, thereby hampering the possibility of full cross-examination on the transcript. The objection was not upheld; indeed, the Milutinović transcript had been explicitly mentioned in the admissibility decision (Prosecutor v. Đorđević, Decision on Prosecution's Motion for Admission of Evidence Pursuant to Rule 92 ter, supra note 58).

64 Karemera Written Statements Decision, supra note 45, at paras. 105–111.

65 See e.g., Rohan, supra note 18, at 523–4.

66 E.g. Taylor Judgement, supra note 20, para. 202; Đorđević Judgement, supra note 22, para. 12; Gatete Judgement, supra note 21, para. 18; Gotovina et al. Judgement, supra note 22, at para. 45.

67 See below, section 3.2.

68 Prosecutor v. Limaj, Judgement, IT-03-66-A, A. Ch., 27 September 2007 (‘Limaj Appeals Judgement’), at para. 86.

69 The Appeals Chamber in Kvočka noted that not every inconsistency needed to be addressed; if an inconsistency existed within the witness's testimony or a contrary piece of evidence was presented but not mentioned in the Trial Chamber's judgement, it was to be presumed that the Chamber had evaluated the evidence as a whole in light of this and weighed the evidence accordingly. Prosecutor v. Kvočka, Judgement, IT-98-30/1-A, A. Ch., 28 February 2005, at para. 23.

70 On countless occasions, the oral testimony of a witness was discounted as lacking in credibility for reasons outlined by the Trial Chamber. To give but one example, in the Đorđević Judgement, supra note 22, para. 101, the chamber found it ‘incredible’ that anti-terrorism strategies (‘the single most pressing security issue . . . at the time’) undertaken in Kosovo were never discussed in the Collegium of the Minister, despite several witnesses testifying that this was the case.

71 Ndahimana Judgement, supra note 21, para. 45; Nyiramasuhuko et al. Judgement, supra note 21, at para. 177.

72 Rule 90(A), Rules of Procedure and Evidence, UN Doc. ITR/3/Rev.21, International Criminal Tribunal for Rwanda, 9 February 2010. The principle of orality has been defined as ‘a preference for the oral introduction of evidence’. Prosecutor v. Halilović, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, IT-01-48-AR73.2, A. Ch., 19 August 2005, at para. 17; Prosecutor v. Đorđević, Decision on Prosecution's Motion to Admit Exhibits from the Bar Table, IT-05-87/1-T, T. Ch. II, 28 April 2009, at para. 11.

73 Nyiramasuhuko et al. Judgement, supra note 21, at para. 181.

74 Gotovina et al. Judgement, supra note 22, at para. 16. Compare Prosecutor v. Gotovina et al., Transcript, IT-06-90-T, T. Ch. I, 24 April 2008, 2205. ‘The Trial Chamber expects the Prosecution . . . to clarify as necessary portions of the statement, without eliciting the same evidence viva voce.’

75 As was the case in over 5,000 of the 8,000 footnotes in the two-volume judgement.

76 Prosecutor v. Gotovina et al., Guidance on the Admissibility into Evidence of Unattested Parts of Rule 92 ter Statements as Previous Inconsistent Statements, IT-06-90-T, T. Ch. I, 30 March 2010, at para. 10; Gotovina et al. Judgement, supra note 22, at para. 19. The 30 March 2010 decision explicitly mentions the allegations made by witness Petar Pašić that his written statements were not an accurate account of what he said at the time. He later acknowledged that the changes made to his statements were either because the statements did not reflect what he said, or were comments that he made at the time without giving them much thought, which is obviously distinct from incorrectly reported statements. However, when pressed, the witness was unable to report which of the changes were made because the statement was incorrect and which were made because he had reconsidered his comments: Prosecutor v. Gotovina et al., Transcript, IT-06-90-T, T. Ch. I, 12 October 2009, 22937–40. In any event, the unattested parts of Pašić's testimony do not appear to have been referenced by the Trial Chamber in its judgement.

77 Perišić Judgement, supra note 22, at para. 42.

78 Prosecutor v. Perišić, Report on Rule 92 ter Motion, IT-04-81, 10 July 2008; Prosecutor v. Perišić, Prosecution's Motion for Admission of Evidence Pursuant to Rule 92 ter with Confidential Annex A, IT-04-81, 1 May 2007; Prosecutor v. Perišić, Prosecution's Supplement to Motion for Admission of Evidence Pursuant to Rule 92 ter with Confidential Annex A, IT-04-81, 12 June 2007.

79 See Prosecutor v. Munyakazi, supra note 56, and accompanying text. See also Prosecutor v. Perišić, Transcript, IT-04-81-T, T. Ch. I, 20 May 2009, 6356, where defence counsel Mr Guy-Smith remarked, ‘I think they [the prosecution] changed . . . [the status of the witness] again. Yesterday's viva voce is today's 92ter’, indicating that the form in which testimony is presented can change sporadically and without much prior notice.

80 Perišić Judgement, supra note 22, at para. 41.

81 Perišić Judgement, supra note 22, at paras. 416–435; Prosecutor v. Perišić, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 bis, IT-04-81-T, T. Ch. I, 2 October 2008.

82 The Perišić Judgement, supra note 22, at para. 41, does state that the fact that 92 bis testimony was not cross-examined was taken into account and that the Chamber awarded ‘appropriate weight’ to it accordingly.

83 Perišić Judgement, supra note 26, at para. 44.

84 Ibid., at para. 667.

85 Karemera et al. Judgement, supra note 21, at paras. 1408–1410.

86 Ibid., at paras. 1337–1424.

87 Ibid., at para. 1411.

88 Ibid.

89 Gotovina et al. Judgement, supra note 22, at para. 16.

90 Đorđević Judgement, supra note 22, at paras. 1817–1819.

91 Prosecutor v. Đorđević, Vlastimir Đorđević's Appeal Brief, IT-05-87/1-A, 15 August 2011, at para. 347.

92 Đorđević Judgement, supra note 22, at para. 1818.

93 Ibid., at para. 18.

94 Nyiramasuhuko et al. Judgement, supra note 21, at paras. 190, 343, 391, and 569.

95 Perišić Judgement, supra note 22, at para. 41

96 Prosecutor v. Brđanin, Judgement, IT-99-36-A, A. Ch., 3 April 2007, at paras. 39–40.

97 Prosecutor v. Halilović, Judgement, IT-01-48-A, A. Ch., 16 October 2007, at para. 128.

98 Perišić Appeals Judgement, supra note 24, at para. 95.

99 Ibid., at paras. 90–96.

100 Perišić Judgement, supra note 22, at para. 1720.

101 Ibid., at para. 1784.

102 Limaj Appeals Judgement, supra note 68, at para. 86.

103 Perišić Judgement, supra note 22, at para. 1773. Judge Moloto dissented on this point, but agreed with the Majority on the accused's failure to punish.

104 Perišić Appeals Judgement, supra note 24, at paras. 95–96.

105 Gotovina Appeals Judgement, supra note 24, at para. 66.

106 Ibid., Dissenting Opinion of Judge Carmel Agius, at para. 3.

107 Ibid., at paras. 19–24.

108 Perišić Appeals Judgement, supra note 24, at para. 95.

109 See also, Gotovina Appeals Judgement, supra note 24, Dissenting Opinion of Judge Carmel Agius, at paras. 26–27. (‘The Majority, which – unlike the Trial Chamber – did not have the benefit of hearing all of the evidence, simply discards the considerations and assessments of the Trial Chamber in a manner which I consider to be unorthodox and unacceptable.’)

110 Lubanga Judgement, supra note 26, at paras. 95–97.

111 Gotovina et al. Judgement, supra note 22, at para. 47; Prosecutor v. Gotovina, Transcript, IT-06-90-T, T. Ch. I, 26 March 2010, at 28048.

112 The author has been granted a British Academy Quantitative Skills Acquisition Award to carry out an in-depth analysis of evidence before the International Criminal Tribunal for the former Yugoslavia, which will hopefully yield more in-depth results.