The End of In-person Testimonies at the ICC?

Abstract More than 15 years after their first use in the Lubanga case, video-link testimonies (VLT) have become increasingly prevalent at the International Criminal Court (ICC). This mode of testimony has enabled hundreds of witnesses to testify remotely, thereby overcoming the logistical, financial, and temporal hurdles of transporting them from distant locations to the ICC. Despite their benefits, the Court’s growing reliance on VLT has raised concerns for the rights of the accused (hereafter ‘fair trial rights’), particularly the rights to cross-examination and a fair assessment of evidence. This article proposes to examine this tension. It contends that while VLT are not inherently incompatible with fair trial rights, their widespread and indiscriminate use, especially in relation to key witnesses, is problematic and potentially detrimental to fair trial rights. It highlights how the current practice hinders the defence’s ability to effectively challenge the use of VLT by improperly shifting the burden onto the accused to demonstrate a risk of prejudice, thereby weakening safeguards for cross-examination and fair assessment of evidence at critical junctures. This article concludes by emphasizing the need for a cautious approach, one that balances efficiency and the benefits of VLT with the protection of the accused’s fundamental rights.