By William & Mary Law School
A Q&A with Professor Nancy Combs, author of a new book entitled Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010).
Nancy Combs joined the faculty in 2004. A graduate of the University of California at Berkeley School of Law (Boalt Hall), Professor Combs served as a law clerk to Judge Diarmuid O'Scannlain on the Ninth Circuit Court of Appeals and to Justice Anthony Kennedy on the United States Supreme Court. Prior to joining the faculty at William & Mary, Professor Combs served as legal advisor at the Iran-United States Claims Tribunal in The Hague, The Netherlands. She has published on topics in international law and international criminal justice. Professor Combs received her B.A., in philosophy, summa cum laude, from the University of Portland and her Ph.D. from Leiden University in December 2005. Before attending university, Professor Combs owned and operated a chimney sweeping business.
Q: How did you become interested in this topic?
A: When I was researching an earlier book on guilty pleas in international criminal law, I found myself reading the guilty plea colloquys between the defendants and the judges at the Special Panels for Serious Crimes in East Timor. I was shocked to find that most defendants seemed to have no clue about the nature of a guilty plea, the consequences of pleading guilty or even what they were pleading guilty to. It started me thinking, is it viable to impose Western trial procedures in areas where the underlying conditions are very different? I started reading more transcripts and found that many witnesses in international criminal trials are unable to answer key factual questions - basic questions like when an event took place or how far was the witness from the scene he witnessed. These are fundamental factual issues that judges must be informed about if they are going to be able to issue accurate judgments. So the project got started with the question: what does justice look like when the gravest of humankind's crimes are being prosecuted in trials that look like Western trials but where some of the fundamental assumptions underlying Western trials cannot be fulfilled.
Q: Your book examines a basic assumption that you argue supporters and critics of international criminal tribunals have overlooked. What is it?
A: The assumption I challenge is that international criminal trials are a viable mechanism for determining the specifics of who did what to whom in a mass atrocity. This is a question that has been taken for granted up until now, as scholars have focused on the philosophical foundations of international criminal trials or their capacity to advance various penological goals, among other topics. Sometimes scholars have found international trials wanting in these respects, but even when they have, their critiques have presupposed that international trials - even if they can do nothing else - can determine with some measure of certainty whether or not a defendant engaged in the acts alleged in the indictment. My study suggests that we shouldn't be so sure.
In the first half of the book, I identify various fact-finding impediments that pervade international criminal trials. So, as I just mentioned, many witnesses have great difficulty answering basic who, what, where, when questions. In addition, even when witnesses seemingly possess the information that counsel and judges seek, they don't always convey it in the way that Western court personnel expect. Questions often need to be asked multiple times and even then, witnesses sometimes can appear to dance around the topics and not answer directly. So, one problem is that judges often don't get the information they need for informed decision-making, but even more problematic is that judges often can't tell why they aren't getting that information. Most of the time, we might hypothesize "innocent" explanations: for instance, many witnesses have never been to school, so it's understandable that they cannot answer certain date, time and distance questions. Similarly, cultural divergences between the witnesses and the courtroom personnel and the need for language interpretation can lengthen and muddy-up what might otherwise be a straightforward exchange. The problem is there are also some not-so-innocent motivations that are equally plausible explanations for the problematic testimony. Indeed, the very fact that questioning at the international tribunals is so frequently bedeviled by educational deficits, interpretation errors, and cultural divergences means that witnesses can invoke these communication impediments even when they are not at play, as a means of concealing lying, inconsistencies or other weaknesses in witness testimony. I argue that the international tribunals that I studied operate in a fact-finding fog of inconsistent, vague and sometimes incoherent testimony that makes it almost impossible to determine beyond a reasonable doubt whether the defendant performed the acts alleged in the indictment.
Q: Stepping back from substance for a moment, what was the hardest part of conducting research for this book?
A: The hardest part was also the most rewarding part: reading through thousands and thousands of pages of transcripts. It was tedious at times and really time-consuming, so that on a lot of days, I didn't feel as though I accomplished all that much. But it was also tremendously gratifying to get a good sense of what goes on during these trials and see how a defendant is actually convicted, on the basis of what evidence.
Q: You point to witness lying as one factor contributing to fact-finding difficulties in this context. How big a problem is this?
A: There certainly seems to be a fair bit of lying, at least at some of the international tribunals. Even before looking at the transcripts, it's clear that international witnesses face a variety of pressures that might encourage them to lie on the stand. Group-based loyalties are one example. International crimes virtually always target whole peoples, so victims of such crimes are not randomly chosen but rather become victims because of their membership in a certain group. For that reason, international criminal trials necessarily will feature many fact witnesses who have reason to be biased because they are members of the group that was targeted while the defendant is a member of the offenders' group. The tribunals also offer witnesses stipends to enable the witnesses to travel to the tribunal and to maintain themselves and their families while the witnesses are away from home. Although it is entirely appropriate for witnesses to receive stipends, defense counsel frequently observe that the daily allowances that the Tribunals provide to witnesses far exceed what those witnesses would earn in their usual occupations and provide inducements to become witnesses regardless of whether the individuals have truthful testimony to offer. A final factor motivating some witnesses to lie is the very ease with which they can do so. For a variety of reasons, even the most basic factual assertions in Rwanda, Sierra Leone and East Timor are nearly impossible to prove definitively. As a consequence, whereas in a typical Western trial, only a few factual issues are in dispute because the remainder cannot be plausibly contested, in international criminal proceedings, virtually every question is open to contest. A prosecution witness will say that she saw her father killed by a rebel soldier and a defense witness will say that the father isn't dead at all, but instead he ran away after an altercation with the village chief. This is important because even if the ideological and financial incentives I just mentioned would severely tempt international witnesses to lie, the witnesses are not apt to succumb to that temptation if their lies are likely to be detected. But since international witnesses can bank on the Tribunals' inability to verify the kinds of basic facts that would reveal their lying, we can expect more witnesses to lie.
Now, just because international witnesses have incentives to lie doesn't mean that they do, so I tried to get a sense of how prevalent perjury is at the international tribunals. What I found is that it varies a lot with the tribunal. At the Special Panels in East Timor, for instance, not only is there little evidence of witness lying, but virtually all of the defendants confessed their crimes before trial. At the International Criminal Tribunal for Rwanda (ICTR), by contrast, lying appears to be quite prevalent. On a fair number of occasions, witnesses will simply admit to lying, but then the judges don't know whether the witness lied during the initial testimony or later when he or she said she was lying. To get a more comprehensive sense, I examined each of the completed ICTR cases and found that more than 90% of them featured at least one example of diametrically opposed testimony between one or more witnesses. Indeed, a whopping 85% of ICTR defendants proffered alibis that were supported by defense witnesses. That alibi rate is four or five times higher than in American or British cases. Of course, the high incidence of alibis and blatantly contradictory testimony doesn't necessarily indicate perjury because some of the alibis and contradictions probably reflect the witnesses' poor memory and perception, rather than their willfully false testimony. But because the alibis and contradictory testimony are so prevalent, it seems to me naïve to dismiss all - or even a significant percentage of it - as stemming from honest mistakes.
Q: Given what you've learned from your research, if you were put in charge of conducting a new international criminal tribunal, what would you do differently?
A: It goes almost without saying that sufficient resources must be devoted to ensuring fact-finding that is as accurate as it can be: The Tribunals must provide quality language interpretation and investigations practices. As things currently stand, a large proportion of witnesses testify in ways that are inconsistent with the pre-trial statements taken by investigators. It's very hard for judges to know what to make of those inconsistencies, however, because while they could suggest that the witness changed her story, they could just as plausibly reflect sloppiness on the part of the investigator. The tribunals tend to give witnesses the benefit of the doubt in these instances, but I'm not convinced that doing so is consistent with the beyond-a-reasonable-doubt standard of proof applicable in these cases.
But some of the problems that I identify are not amenable to a quick fix whether or not sufficient resources are devoted to them, so my broader priority would be to recognize the inherent limitations of these trials. I am still quite an advocate of international criminal tribunals as a general matter, but I think the allegations that appear in these trials must be targeted at what is actually possible to know. In the latter half of the book, I argue that current international criminal convictions are heavily influenced by (seemingly rejected) notions of organizational liability that came out of the Nuremberg Tribunal. So, one question is whether such notions are ever useful and if so, when. It might be that if we are going to honestly justify international criminal convictions, then we'll need more recourse to controversial theories of liability such as joint criminal enterprise and conspiracy. I'm still developing my normative conclusions, but the basic thrust is that we need more candor and more acknowledgement of what is and what is not possible for trials of mass atrocity.