The Indeterminacy of Precedent : Negotiating the Admissibility of Victim Participant Testimony before the International Criminal Court

Abstract

The icc represents a legal laboratory that is still consolidating itself, with multiple unclarities in evidence and procedural law requiring resolution through jurisprudence. Our paper draws on interaction analysis to unpack this process, focusing on the jurisprudential construction of ‘dual status’ victim participant testimony. To elucidate how this evidentiary/procedural element is locally negotiated, we examine an excerpt from the Ongwen hearing transcripts, in which the defense objects against the testimony by a dual status witness called by the victim participants’ legal representative. The analysis traces how the defense counsel’s objection is anchored in a trajectory of prior decisions, and demonstrates that the implementation of the criteria drawn from these decisions is mediated by deep-rooted common-sense assumptions about the ‘ownership’ of testimony. These unspoken assumptions open up a discursive space in which trial actors can discuss the interactional quality of testimony, which adds an element of contingency to the final decision.