Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions
By: Nancy A. Combs (author)Paperback
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Fact-Finding Without Facts explores international criminal fact-finding - empirically, conceptually, and normatively. After reviewing thousands of pages of transcripts from various international criminal tribunals, the author reveals that international criminal trials are beset by numerous and severe fact-finding impediments that substantially impair the tribunals' ability to determine who did what to whom. These fact-finding impediments have heretofore received virtually no publicity, let alone scholarly treatment, and they are deeply troubling not only because they raise grave concerns about the accuracy of the judgments currently being issued but because they can be expected to similarly impair the next generation of international trials that will be held at the International Criminal Court. After setting forth her empirical findings, the author considers their conceptual and normative implications. The author concludes that international criminal tribunals purport a fact-finding competence that they do not possess and, as a consequence, base their judgments on a less precise, more amorphous method of fact-finding than they publicly acknowledge.
Nancy Amoury Combs is a Professor of Law at the William and Mary Law School, where she is the 2009-10 Cabell Research Professor and a 2008 recipient of William and Mary's Alumni Fellowship Award for teaching excellence. She earned her Ph.D. from Leiden University and her J.D. from the University of California at Berkeley School of Law. She has 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 and Mary Law School, Professor Combs served as legal advisor at the Iran-United States Claims Tribunal in The Hague. She has written extensively on topics in international law and international criminal justice, publishing two books and numerous articles and essays appearing in the University of Pennsylvania Law Review, the Vanderbilt Law Review, the Hastings Law Journal, the American Journal of International Law, the Harvard International Law Journal, and the Chicago Journal of International Law, among others. She currently serves as member of the International Expert Framework, an international working group that is developing general rules and principles of international criminal procedure.
1. The evidence supporting international criminal convictions; 2. Questions unanswered: international witnesses and the information unconveyed; 3. The educational, linguistic, and cultural impediments to accurate fact-finding at the international tribunals; 4. Of inconsistencies and their explanations; 5. Perjury: the counter-narrative; 6. Expectations unfulfilled: the consequences of the fact-finding impediments; 7. Casual indifference: the trial chambers' treatment of testimonial deficiencies; 8. Organizational liability revived: the pro-conviction bias explained; 9. Help needed: practical suggestions and procedural reforms to improve fact-finding accuracy; 10. Assessing the status quo: they are not doing what they say they are doing but is what they are doing worth doing?; 11. Conclusion.
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