TY - JOUR

T1 - Strenghtening the Evaluation of Evidence in International Criminal Trials

AU - McDermott , Yvonne

PY - 2017/7

Y1 - 2017/7

N2 - Recent studies have highlighted instances where findings of fact reached by international criminal tribunals appear not to be adequately supported by the evidence. These works have typically focused on evidential issues, such as witnesses’ fading memories, cultural differences in witnesses’ re-telling of their experiences that are not appreciated by judges, and more sinister aspects (such as financial incentives offered to witnesses) as the root causes for such discrepancies. However, this article argues that these accounts are incomplete, as they do not recognise difficulties arising from the judicial evaluation of, and reasoning on, the evidential record, which poses potentially insurmountable challenges to reliable fact-finding by international criminal tribunals. This paper examines the analysis of evidence in international criminal trials, and highlights recent differences of opinion between judges on how evidence should be weighed and evaluated. It points to some unique issues arising from the enormity of the fact-finding role in international criminal trials, and the procedural framework embraced by the international criminal tribunals. It discusses alternative tools to assist fact-finding, and their potential applicability to international criminal trials.

AB - Recent studies have highlighted instances where findings of fact reached by international criminal tribunals appear not to be adequately supported by the evidence. These works have typically focused on evidential issues, such as witnesses’ fading memories, cultural differences in witnesses’ re-telling of their experiences that are not appreciated by judges, and more sinister aspects (such as financial incentives offered to witnesses) as the root causes for such discrepancies. However, this article argues that these accounts are incomplete, as they do not recognise difficulties arising from the judicial evaluation of, and reasoning on, the evidential record, which poses potentially insurmountable challenges to reliable fact-finding by international criminal tribunals. This paper examines the analysis of evidence in international criminal trials, and highlights recent differences of opinion between judges on how evidence should be weighed and evaluated. It points to some unique issues arising from the enormity of the fact-finding role in international criminal trials, and the procedural framework embraced by the international criminal tribunals. It discusses alternative tools to assist fact-finding, and their potential applicability to international criminal trials.

KW - Evidence

KW - Proof

KW - Fact-finding

KW - ICC

KW - ICTY

KW - ICTR

U2 - 10.1163/15718123-01704005

DO - 10.1163/15718123-01704005

M3 - Article

VL - 17

SP - 682

EP - 702

JO - International Criminal Law Review

JF - International Criminal Law Review

SN - 1567-536X

IS - 4

ER -