FACT‐FINDING WITHOUT FACTS: THE UNCERTAIN EVIDENTIARY FOUNDATIONS OF INTERNATIONAL CRIMINAL CONVICTIONS by N.A. COMBS
| Published date | 01 September 2011 |
| Author | JOHN JACKSON,YASSIN M'BOGE |
| DOI | http://doi.org/10.1111/j.1467-6478.2011.00553.x |
| Date | 01 September 2011 |
FACT-FINDING WITHOUT FACTS: THE UNCERTAIN EVIDENTIARY
FOUNDATIONS OF INTERNATIONAL CRIMINAL CONVICTIONS by
N.A. COMBS
(Cambridge: Cambridge University Press, 2010, 420 pp., £80.00)
There is a notorious deficit of empirical studies on the operation of inter-
national criminal tribunals and how they seek to achieve the goals that
underpin their existence. This book is to be welcomed as an empirical study
of the fact-finding task at the centre of the work of these international
tribunals. The study reveals `severe impediments to accurate fact-finding' in
the International Criminal Tribunal for Rwanda (ICTR), the Special Court
for Sierra Leone (SCSL), and the Special Panels for East Timor (Special
Panels) through an analysis of a selection of trial transcripts from each of
these three tribunals. The focus is on witness testimony which has become
the main source of evidence used before international trials since the early
models of the Nuremberg and Tokyo Tribunals which heavily relied on
documentary evidence. The impediments which the study exposes to
accurate fact finding based on such testimony are so serious that they raise
worrying doubts over the accuracy of the findings reached by the tribunals
and over their ability to fulfil the laudable tasks they have been entrusted
with.
Combs supports her critique of the fact-finding competence of the
tribunals with empirical evidence combining trial transcripts with a sample
of interviews of defence counsel, prosecutors, and investigators. Her use of
direct extracts from the trial transcripts captures the essence of the criticisms
Combs makes about the fact-finding process at the ICTR, the SCSL and the
Special Panels. Chapter 2 demonstrates how many witnesses are unable to
convey the information that court personnel expect and need to receive if
they are to have any confidence in the factual determinations they make and
chapter 3 goes on to examine the educational, linguistic, and cultural
impediments that underlie these testimonial deficiencies. The author is to be
commended for the excellent use of transcript material to support the need to
address the problem of fact-finding impediments in international trials.
Although much needed light is shone on these impediments in the initial
chapters of the book, Combs's critique contains a number of shortcomings
from a methodological, analytical, and normative standpoint. In terms of
methodology, criticism can be levelled at the sampling of the international
tribunals used in the study. Combs chooses to exclude the International
Criminal Tribunal for the former Yugoslavia (ICTY) from her analysis on
the ground that the ICTY prosecutes crimes that took place in Europe where
the educational, cultural, and linguistic divergences between witnesses and
courtroom staff have not proved as distortive. Yet it would have been
interesting to have this contrast brought out by a more detailed comparison
between the ICTY and the other tribunals. She freely cites jurisprudence
from the ICTY on the need for international tribunals to take `special care'
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ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School
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