PROTECTIVE MEASURES

Recommendation:

Pursuant to Art. 68 of the Statute, the Rules of Procedure and Evidence must allow the Court to provide for the protection of victims and witnesses throughout the investigation, pre-trial, trial and post- trial as a consequence of their participation. Such measures should include, inter alia, the availability of alternative means of giving evidence and testimony, confidentiality for victims/witnesses from the public and media, and, in exceptional circumstances, anonymity with respect to the accused.

Commentary:

The Rules should advance the fundamental mandate contained in Art. 68(1) of the Statute that the Court “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” In this regard, the following issues must be addressed.

Alternate Means. The Statute provides that the Court may resort to alternate means of presenting evidence to protect victims, witnesses or even the accused. Specifically, Art. 68(2) allows for in camera proceedings and the presentation of evidence by electronic or other special means especially in cases of sexual violence or child witnesses. Art. 69(2) lists other methods which the Court may utilize when it deems it appropriate for testimony to be offered in ways other than in person, including the giving of oral or recorded testimony by means of video or audio technology and introduction of documents or written transcripts. Additionally, Rule 75 of the ICTR and ICTY contain an illustrative list of the means to ensure that identifying information remain confidential.

Confidentiality. The Statute provides that the Prosecutor may seek to keep the identities of the victims and witnesses confidential with respect to the public and media as well as the accused prior to trial. According to Art. 54(3)(f), the Prosecutor may: “take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.” Art. 57(3)(c) refers to the Pre-Trial Chamber’s authority to provide for the “protection and privacy of victims and witnesses.” And, as noted above, Art. 68(2) allows the Trial Chamber to take such measures to ensure the confidentiality of victims/witnesses from the public. Additionally, both the ICTR and ICTY provide for confidentiality of victims and witnesses with respect to the public and media at all stages of the proceedings.

Anonymity. The issue of anonymity has generated much thoughtful debate within the Women’s Caucus. Some of our members have backgrounds as criminal defense lawyers and others come from systems where the anonymity of witnesses has been misused by dictatorial regimes to eliminate political opposition in “trials” which, in their entirety, made a mockery of any notions of real justice. Thus, the Women’s Caucus does not approach the subject of anonymity lightly or without a recognition of the seriousness of the issue and its implications for a fair and just trial.

We recognize, however, that exceptional circumstances will likely arise which necessitate that victims/witnesses remain anonymous to the accused when by participating in the trial process they, or their family members or close associates, may be placed at risk of death or great harm. Pursuant to customary international law and Art. 68(1) of the Statute, it is the responsibility of the ICC to minimize, to the greatest extent compatible with the rights of the accused and to a fair and impartial trial, such risks to victims and/or witnesses who choose to participate in the judicial process, often at great personal cost and psychological pain. The Statute anticipates and provides for the protection of witness’ identity prior to trial in accordance with Art. 54.

It was understood in Rome in the negotiation of Art. 68(1) that a fair and impartial trial must take into account not only the rights of the accused but also the safety and privacy of victims and witnesses. Otherwise, a fair and impartial trial may be impossible because crucial witnesses would be unable to testify and access to justice will be denied. This balancing approach to what constitutes a fair trial, which involves weighing the rights of the accused and the concern for the protection of victims and witnesses, is evident throughout the Statute. (See articles 68, 69, 67, 75, 54, 55, inter alia) With appropriate procedural safeguards, the right of the accused to a fair trial can be effectively ensured even upon the grant of anonymity in exceptional circumstances. Moreover, pursuant to Art. 67(1)(c ), the Court would still need to ensure that the accused have an opportunity “to examine, or have examined” the witness via means which do not allow the identification of the witness to be made known to the accused.

Thus, we believe that the Court must have the discretion to permit anonymous testimony in exceptional circumstances and with appropriate safeguards. The Court should take into account factors such as (1) the fear of harm or death on the part of the witness, including the existence or lack thereof of ongoing conflict situations; (2) the importance of the witness to the prosecutor’s case, (3) the lack of prima facie evidence that the witness is untrustworthy; (4) the ineffectiveness or non-existence of a witness protection program; (5) availability of other less restrictive measures.