Brad Loberg - ICC Witness Protection Measures

Brad Loberg

Independent Research

Spring 2006

The Witness Protection Measures of the Permanent International Criminal Court Are Superior Than Those Provided By Its Temporary Ad Hoc Contemporaries

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 U.S. government carries the burden of punishing criminal acts committed within its jurisdiction, it must take not only the burden of ensuring the fairness and accuracy of the proceeding, but also the stability and sanctity of the venue, and the safety and comfort of its participants.

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 U.S. is a central feature of criminal proceedings.

The 2004 U.S. Department of Justice appropriations request to cover the fees and expenses of witnesses was $156,145,000.[1] $31,000,000 of that sum was for the protection of witnesses.[2] 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.[3] The Service provides 24-hour protection for witnesses at crucial periods during and leading up to trial.[4] To protect the judicial process, the U.S. Marshall Service requested $553,500,000 for 2005.[5] 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.[6] 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.[7]

Where the 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.[8] Perpetrators of genocide, war crimes, crimes against humanity, and aggression can be hailed before the ICC in The Hague and be held responsible for their actions where there has been an historic dearth of a similarly competent, permanent institution.[9]

Before the ICC, the adversarial mode of the proceeding (but for a trial by jury) is basically congruent with the experience in any U.S. court.[10] The ICC, like many other courts, believes that the credibility of a witness can be best discerned in open court, and only with public testimony can the truth be best determined and the accused be granted the appropriate fairness. Because the ICC employs an adversarial system of justice focused on testimony in open court, some method of ensuring witness safety and comfort is required. This is particularly so given the extraordinarily sensitive nature of the subject matter jurisdiction of the court and the expected lack of experience most ICC witnesses will have.

Witnesses to crimes of this sort will require protections similar to that afforded witnesses in U.S. courts who will testify regarding dangerous elements of organized crime. ICC witnesses will likely have little to no experience with the procedure of a criminal trial and are unlikely to understand the purpose of testimonial evidence where their concept of justice has been much more visceral.

Victims of genocide are denotatively members of a differentiable ethnic group.[11] 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 U.S., where the leader of a purported genocide had been detained, his cohorts may remain at large and would likely commit further acts of violence against the witness or his family and friends. Further, even in custody, a perpetrator of American organized crime or a perpetrator of genocide could retain the capacity to issue orders to his underlings. In the case of prosecuting genocide perpetrated in areas without the complex governmental services available in the U.S., the needs of witness protection clearly differ in type and kind. The need to secure an entire ethnic group that has likely been scattered to disparate refugee camps and other hidden locales is of a vastly different nature than securing a new identity and suburban hometown for a mob informant. While protecting a mob informant appears a police action, the protection of an ethnic minority recently subjected to the purge of genocide seemingly requires military protection. Yet, the simple fact that individuals from the persecuted group choose to testify against the perpetrators of the genocide does not necessarily change the protection needs of the remainder of the community. Presumably, where genocide is ongoing notwithstanding the capture of its leader or leaders, that genocide will continue regardless of the fact the members of the purged group choose either to testify or not to testify. Yet, in the situation where the broad genocidal movement has been quelled through military force and its proponents either captured or scattered, the ICC will face a difficult task of protecting witnesses and victims of the genocide.

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.

For this reason, comparisons between the U.S. mode of witness protection and that provided by the ICC are not particularly instructive. The ICC is of particular importance when serving to administer justice in failed nations whose administrative shortcomings go far beyond the inability to protect witnesses. The witness protection procedures of a Western nation with a progressive, respected system of criminal justice would be preferred, but it must be stressed that these services are not the alternative in the absence of the ICC. Rather, the ICC’s structure as a treaty between nations not only serves as a means to pool the various jurisdictions of the member states, but also to pool the resources of those states.[12] Thus, rather than the creation of ad hoc tribunals to try war criminals, perpetrators of genocide, and others who failed to hear the civilized world’s trumpet blasts of ‘never again,’ the ICC purports to put the power of the nation-state to use.

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 the U.S. and USSR tempered each other and, for the most part, policed the world’s most heinous criminals (that didn’t govern the U.S. or USSR) under the banner of political necessity. With the fall of the Soviets, there is no longer the political necessity of ensuring friendly satellite governments and the resulting power vacuum has lead to an upsurge in tribal and ethnic violence, often under the sanction of autocratic governments that view such violence as an expedient to greater influence and control. These states, either failed or failing, in the control of leaders more concerned with personal power than the administration of state cannot be counted on to police and adjudicate horrible crimes within their jurisdiction.

The other non-ICC alternative is the ad-hoc tribunal that emerges to meet the needs of the instant. Nuremberg is the oft-cited precedent setter for this adjudicative mode, yet the mechanism flourishes today. The International Criminal Tribunal for the Former Yugoslavia (ICTY), established to bring justice to the perpetrators of (and interveners in) the Yugoslavian genocide, and the purportedly national court convened to try Saddam and his cohorts are examples of these ‘rose in the desert’ tribunals. These tribunals, while far more capable of administering justice than failed nation-states, suffer maladies of their own. Because of their short-lived, particularized jurisdiction, these tribunals are easily disparaged by defendants as no more than puppets of their political enemies who mete out only a form of victor’s justice that does not, in fact, satisfy the norms of disinterested justice. Additionally, that short-lived jurisdiction does not allow for the creation of an evolving body of case law that clearly announces the rights and duties that grant adjudicative bodies credibility before the population.

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.[13] 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 tribunals.[14] Judges 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 witness relocation programs.”[15] 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.[16] It has been noted that the ad hoc tribunals in Yugoslavia and Rwanda carry massive amounts of international backing due to the nature of their creation under Chapter Seven of the United Nations Charter, yet still have run into tremendous operational problems.[17] These problems resonated throughout the proceedings and likely originated from both a lack of operational funding and a lack of experience and precedent.[18] “Victim-witnesses are the soul of war crimes trials at the ICTY,” but their involvement in the proceedings presents challenges.[19] Because there were no written accounts of the crimes by Milosevic’s government, witnesses are the only means to convict war criminals.[20] Due to the situation of the court, its lack of funding, lack of experience and lack of workable precedent, the task of obtaining testimony in open court, as required by the adversarial system of criminal justice, was nearly insurmountable.

Many witnesses had to travel to The Hague from their refugee accommodations following the cessation of the conflict in the former Yugoslavia.[21] Those remaining in the areas where the war crimes took place reasonably feared intimidation and retaliation at the hands of the cohorts of the defendant directed at friends or family.[22] This fear was exacerbated by the fact that many of the war criminal and their families remained in the same communities as the victims.[23] While the ICTY was capable of offering witnesses some modicum of protection, it was often unsatisfactory to quell the myriad of emotions and fears facing the victims of war crimes where further hostilities are not implausible.[24]

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.[25] 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.[26]

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.[27] 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.[28] 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.”[29]

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.”[30]

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.”[31]

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.”[32] 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.[33] As such, the Rome Statute establishes its own Victims and Witnesses Unit within the Registry of the Court.[34] 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.[35]

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.[36] 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.[37]

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.[38] 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.[39] 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. [40] Additionally, states may request protections of the Court for its agents to secure confidential or sensitive information.[41] 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.

[1] http://www.usdoj.gov/jmd/2004summary/pdf/pg76.pdf

[3] http://www.usmarshals.gov/witsec/index.html

[5] http://www.usdoj.gov/jmd/2005summary/html/p92-96.htm

[6] http://www.usmarshals.gov/duties/factsheets/witsec.pdf

[7] http://www.usmarshals.gov/witsec/index.html

[8] The Rome Statute authorizes the ICC as a court with jurisdictional complementary to the national jurisdiction of its signatory states.

[9] The Rome Statute, Article 5; http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf

[12] Rome Statute, Article 115 specifies the modes of financing the operations of the ICC.

[14] Wald, Patricia M., Running The Trial Of The Century: The Nuremberg Legacy, 27 Cardozo L. Rev. 1559 1587 (2006).

[17] Arbour, Louise, The Status Of The International Criminal Tribunals For The Former Yugoslavia And Rwanda: Goals And Results, 3 Hofstra L. & Pol'y Symp. 37, 43 (1999).

[18] Phelps, Andrea R., Gender-Based War Crimes: Incidence And Effectiveness Of International Criminal Prosecution, 12 Wm. & Mary J. Women & L. 499, 506 (2006).

[25] 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).

[31] Id. at 939 (internal quotations omitted).

[38] Rome Statute, Article 68(1).