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.

This paper was written at the request of the LJIL editorial board as a reply to the article by Karemaker, Taylor, and Pittman published in the previous issue. It is argued that their position starts from incorrect assumptions and that their overall assessment of proofing is flawed, especially with regard to the risks for fair trial. As to the law of the international tribunals it is acknowledged, however, that there is a structural and normative difference between the ICTY (as the most important ad hoc tribunal) and the ICC. While the former still follows, despite some normative changes, a predominantly adversarial procedure, the ICC Statute provides for a mixed adversarial–inquisitorial procedure. Such a procedural model is not compatible with the adversarial origins of witness proofing and it is therefore not surprising that the ICC Statute does not provide for this technique. As a consequence, at the ICC proofing is neither legally admissible nor necessary.

This article proceeds from two basic assumptions: that international criminal courts are engaged in writing history, and that this may influence the legal framework in which they operate. Against this background, the article takes a closer look at the Statute of the Special Tribunal for Lebanon in order to investigate allegations that the Tribunal has been tailor-made to further a certain view of recent Lebanese history.