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9 - Help Needed: Practical Suggestions and Procedural Reforms to Improve Fact-Finding Accuracy

Published online by Cambridge University Press:  05 October 2010

Nancy A. Combs
Nancy A. Combs
Affiliation:
College of William and Mary, Virginia
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Summary

The foregoing chapters have sought to analyze and explain international criminal fact-finding as it is carried out by the ICTR, SCSL, and Special Panels. That analysis and explanation give rise to a series of normative questions, which I consider in this chapter and the next. This chapter explores various reforms that might be undertaken to improve the accuracy of international criminal fact-finding. Now that we know what sort of fact-finding impediments exist at the international tribunals, we can consider proposals to ameliorate the effects of those impediments. Section 9.A begins that discussion by considering various adaptations to the pretrial, trial, and posttrial processes that currently exist at the international tribunals. Section 9.B explores more radical reforms; it considers whether international trial procedures should be fundamentally reformulated, as a means of enhancing fact-finding accuracy. Before launching into my suggestions for improvement, I wish to frame them with the recognition that the evidentiary problems that I have heretofore identified permit no easy resolution. Western criminal procedures presuppose the existence of witnesses who are willing and able to convey – in a way understandable to the fact-finder – certain information about the events that they have witnessed. To the extent that witnesses are unwilling or unable to perform these tasks, factual accuracy will suffer. How much factual accuracy will suffer is, I believe, influenced to some degree by the criminal procedures that I discuss in the following pages, but the problems I have identified are sufficiently severe, pervasive, and intractable that no combination of reforms is likely to entirely eliminate their distortive effect.

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Fact-Finding without Facts
The Uncertain Evidentiary Foundations of International Criminal Convictions
 , pp. 273 - 333
Publisher: Cambridge University Press
Print publication year: 2010

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