The Witness Protection Measures of the Permanent International Criminal
In an adversarial system of law that respects modern procedural safeguards for criminal defendants, the testimony of witnesses in open court is of chief importance. Broadly, it must be recognized that justice is better served if assignations of guilt are accurately and fairly found. As such, in order to serve the ends of this concept of justice, those with information relevant to a finding of criminal guilt must present that information before the accused and offer the defense the opportunity to cast that information in doubt.
There are instances where there will not be hindrances to obtaining witness testimony in open court. Some cases do not present obstacles that would prevent an individual from testifying, or offer the witness no reason to fear the ramifications of his or her testimony. Often the testimony is only tangential to the matter at hand or of such a nature that, while important to the finding, does not bear directly on the facts. Yet, the nature of a public trial, even where the testimony may not be of crucial importance, creates a stressful atmosphere that may make the issuance of testimony difficult for the witness.
In other circumstances, a witness has good reason to be hesitant to testify. Where the witness fears the threat of violence to himself or his family, or where the testimony will bring public shame, the witness will feel conflicted by his personal interest in refusing to testify and the duty he is likely to feel toward society and in the interest of justice. For this reason, witnesses whose testimony may tend to, at one extreme, subject them to physical violence, or, at the other, serve as an unpleasant experience, are granted a number of services to ensure that their crucial testimony is not thwarted by the fear of delivery in open court.
In the U.S., the
nature of subpoena power, that individuals can be held in contempt for failure
to testify (subject to their Fifth Amendment rights), demands that measures be
instituted to protect the individual. Because the
The complexities of
ensuring witness safety and comfort are exacerbated when the tribunal in
question is not organized within the aegis of a complex nation-state with a
well-funded government capable of delivering a myriad of services. Because testimony is both crucial, yet can
subject the witness to a host of problems including retaliatory violence,
witness protection in the
The 2004 U.S. Department of Justice appropriations request to cover the fees and expenses of witnesses was $156,145,000. $31,000,000 of that sum was for the protection of witnesses. The U.S. Marshall Service maintains the Federal Witness Security Program authorized by the Organized Crime Control Act of 1970 that relocates witnesses who would be subject to retaliation for their testimony. The Service provides 24-hour protection for witnesses at crucial periods during and leading up to trial. To protect the judicial process, the U.S. Marshall Service requested $553,500,000 for 2005. While witness protection is not the only source of this funding, much of it is earmarked for the vast expense of witness protection and relocation. Since its inception in 1971, the Marshall Service has relocated 7,800 witnesses and 9,900 members of their families. Of the utmost importance, the Marshall Service works within the complex institutional structure of U.S. Federal and State law enforcement agencies and other governmental institutions.
adjudicatory tribunal is not organized within the midst of such a nation-state
and focuses on particularly heinous crimes often committed in the geographical
realm of virtual impunity, the necessity of witness protection is of a
different breed. The International
Criminal Court (ICC) was convened by the Rome Statute to maintain jurisdiction
over crimes recognized as affronting humanity. Perpetrators of genocide, war crimes, crimes
against humanity, and aggression can be hailed before the ICC in
Before the ICC,
the adversarial mode of the proceeding (but for a trial by jury) is basically
congruent with the experience in any
crimes of this sort will require protections similar to that afforded witnesses
genocide are denotatively members of a differentiable ethnic group. As such, members of that group were likely to
have resided in geographical proximity prior to the acts of genocide, which
would likely cause them to scatter.
Similar to prosecutions of organized crime members in the
The difficulty of witness protection in circumstances of international human rights violations, rather than detracting from the ICC as a competent institution, is further evidence of why a body like the ICC is so necessary. Perpetrators of human rights violations in recent years have been brought to justice only in some form of military tribunal or ad hoc proceeding created only for the instant purpose, and administered by the victors of a military campaign against the alleged human rights violator. The ad hoc nature of these courts suggests that they will be vastly incompetent, offer easy opportunity for defendants to question the jurisdiction of the court, and suggests that the court would lack the infrastructure to protect witnesses. On the other hand, the ICC because conceived as a permanent institution, capable of addressing human rights violations when they arise will gain competence in building case law, recognizing the idiosyncratic needs of trial procedure, will earn recognition that defendants will be hard pressed to impugn, and, importantly, will devise the infrastructure necessary to carry out the important task of witness protection.
reason, comparisons between the
alternatives are clear and, with any due consideration, serve to lend support
to the ICC both politically and practically.
The business as usual approach to curtailing human barbarism and
providing some measure of justice to its victims has failed in the post-Cold
War era. The conflicting interests of
non-ICC alternative is the ad-hoc tribunal that emerges to meet the needs of
In terms of witness protection, these tribunals, because generally established in the wake of military conflict and sanctioned by the United Nations have few resources to expend and suffer a gap in protection between the foreign combat soldiers who conducted the campaign and the U.N. peacekeepers on the ground to maintain the status quo. Neither of these bodies is specifically trained in witness protection and the task often falls in the gray area between the skill-sets of the two. Where foreign troops intervene to quell a domestic, government-sponsored program of genocide, those troops are often withdrawn at the close of combat operations. To ensure witness protection and thus the administration of an adversarial system of criminal justice, a competent, long-standing body is required that can learn from its failures to accommodate its future needs. Like many functions of the ICC, its witness protection functions are easily disparaged because they are completely untried and rely largely upon the treaty obligations of its member states. Yet, the ICC has the advantage of time. It can learn about the mechanisms required to protect witnesses in various circumstances and can present those needs to the 100 State Parties to the Rome Statute. The ICC will be capable of evolution whereas its ad hoc contemporaries are, because of their temporary nature, static by definition.
Victim and witness units have indeed been established
under the Statute of the ICTY and in other ad hoc
are given leeway to conduct the proceedings with concern for the protection of
witnesses, with measures including “pseudonyms, gag
orders on disclosure of the witness's identity to anyone other than the defense team, voiceovers
and hidden screens to prevent public revelation of their identities,
withholding their names in the final judgment or other public records, and even
programs.” ICTY proceedings were broadcast
into the Balkans, which increased the risks of testifying; around half of all witnesses coming before the ICTY
asked for some kind of protection. It has been noted that the ad hoc tribunals
Many witnesses had to travel to
A number of prosecutions failed due to the inability of the various ad hoc tribunals to adequately protect victim witnesses. The prosecutor in the case against Dusko Tadic was forced to abandon rape charges because the rape witness refused to testify after her family had been threatened. This inability not only caused the failure of the individual trial, but impugned the tribunal’s legitimacy, which likely caused other potential witnesses to fail to emerge.
Like the Rome Statute, the Statute empowering the ICTY guaranteed the accused the right to confront the witnesses against him subject to Rule 69, which provided for protection of witnesses and allowed a judge or Trial Chamber to protect the identity of a victim. Additionally, like the ICC, the ICTY created a Victims and Witnesses Section, a specialized department with three coordinate branches: the Protection Unit, the Support Unit, and the Operations Unit. The responsibilities of the Unit were wide ranging with duties including “assisting disabled witnesses with their travels to the temporary or permanent relocating witnesses who have received serious threats to their lives.”
To determine if witnesses were deserving of anonymity the Trial Chamber balanced the threat against the witness with the accused right to confront the witnesses against him, and employed a five part test:
“1. There must be “an existence of a real fear for the safety of the witness;
2. The prosecution must show that the witness's testimony is sufficiently relevant
and important to the case;
3. There must be no prima facie evidence of the witness's unworthiness in any way;
4. There is no witness protection program in existence; and
5. There are no less restrictive protective measures available.”
Where the identity of witnesses was not disclosed to the defendant:
“1. Judges must be able to observe the demeanor of the witness in order to assess the
reliability of the testimony.
2. Judges must be aware of the identity of the witness.
3. The defense must be allowed ample opportunity to question the witness on matters
unrelated to his or her identity or his or her current whereabouts.
4. The identity of the witness must be disclosed where there is no longer any reason
to fear for his or her safety.”
Some have suggested that the witness protection needs of international tribunals could be handled through appeal to U.N. member countries to “grant political asylum and supply new identities to victims and witnesses, since they fall under the category of persecuted ethnic minorities and thus could arguably qualify for refugee status.” In the case of the ICC, specifically created through the already extant jurisdiction of its member states, mechanisms like this will be easier to employ. Part of the task of cooperating with ICC prosecutions will necessarily be to lend the powers of the nation-state to the Court, which lacks similar mechanisms. While the current ICC formulations of witness protection mechanisms appear very much in line with its ad hoc contemporaries, it is the permanence of the Court as well as its reliance on treaty power that will make its witness protection modes superior. The ICC describes the Rome Statute as containing “revolutionary conditions so far as victims are concerned,” and recognizes the lessons of the ICTY and International Criminal Tribunal for Rwanda (ICTR) concerning the vital importance of witness protection. As such, the Rome Statute establishes its own Victims and Witnesses Unit within the Registry of the Court. Article 43(6) of the Rome Statute states,
[The Victims and Witnesses Unit] shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.
Additionally, Article 68(4) gives the Victims and Witnesses Unit the responsibility of advising the Prosecutor and the Court on the appropriate protective measures, security arrangements and counseling as determined through its exercise of Article 43(6). The Unit is tasked with ensuring the protection and security of all witnesses and victims appearing before the Court, and to establish short and long term protections. Like the above recommendations for the ICTY, The Victims and Witnesses Unit within the ICC manages the negotiations with States concerning the resettlement of witnesses or victims that are traumatised or threatened.
The Pre-Trial Chamber also has responsibilities toward witnesses that pertain to their anonymity at trial should the need arise. Article 57(c) of the Rome Statute requires the Pre-Trial Chamber to provide for the “protection and privacy of victims and witnesses,” and Article 64(7) like similar provision in the Statute of the ICTY balances the right of the accused (listed in Article 67) to confront witnesses against him with regard for the protection of victims and witnesses. Article 68 announces the mechanisms to support witnesses during the trial. Included within that paragraph are blanket provisions guaranteeing the, “safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Further, the court provides avenues for witnesses to give in camera testimony with the aid of electronic means to ensure the protection of the rights of the accused if the witness would be subject to undue stress. Where certain testimony will subject a witness or his family to the danger of retaliation, the Prosecutor may take and summarize that testimony for the Court.  Additionally, states may request protections of the Court for its agents to secure confidential or sensitive information. Unlike the ICTY, Article 64(6)(b) grants the ICC subpoena power (with the assistance of member States) to compel witness testimony.
The operation of the Victims and Witnesses Unit and the Pre-Trial Chamber, while encouraging and necessary, provides no real basis to understand how witness protection will operate in practice or if the ICC will be capable of succeeding where its ad hoc contemporaries have failed. The description of its witness protection mechanisms is remarkably similar to the ad hoc tribunals, most likely because those mechanisms are the only means of contemplating securing witnesses. As the ICC is only now gearing up to employ its mechanisms for the first time, it is unclear how the Victims and Witnesses Unit will operate in practice. The Victims and Witnesses Unit must necessarily function as a bureaucratic body that employs the tools of the ICC constituent nation states to provide witness protection. The Court itself will not carry a force with sufficient capacity to physically police areas where witnesses and their families are located.
This difference between the ad hoc tribunals and the ICC is not insignificant. That the members States are compelled by treaty to assist the ICC in criminal prosecution and must pay dues as a matter of course ensures that the strength of the ICC will not founder on inadequate support as did, to differing extents, the ICTY and ICTR. What makes the difference between the failure of the ad hoc tribunals to protect witnesses and the possibility for ICC success does not lie in the structural mechanism of the protection. Rather, the needs of witness protection join a number of other rationales for establishing a permanent, well-funded court capable of creating a body of case law, institutional experience, and authority to bring human rights violators to justice. Tribunals that arise to meet the needs of a particular conflagration will be only as competent as the short-term requirements of that specific instance of justice. This includes the protection of witnesses. Like other aspects of justice, the ICC will have the time and support to create a legal institution capable of protecting witnesses enough to ensure the maintenance of an adversarial system of criminal law.
 The Rome Statute authorizes the ICC as a court with jurisdictional complementary to the national jurisdiction of its signatory states.
 The Rome Statute, Article 5; http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf
 Rome Statute, Article 115 specifies the modes of financing the operations of the ICC.
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 Phelps, Andrea R., Gender-Based War Crimes: Incidence And Effectiveness Of International Criminal Prosecution, 12 Wm. & Mary J. Women & L. 499, 506 (2006).
 Scharf, Michael P. & Kang, Ahran, Errors And Missteps: Key Lessons The Iraqi Special Tribunal Can Learn From The ICTY, ICTR, And SCSL, 38 Cornell Int'l L.J. 911, 937 (Fall 2005).