Commentary:

1. The VWU should have responsibility for protection, security, counseling and other assistance to victims participating in the proceedings. The Women’s Caucus supports vesting the Registry—and by delegation the Victim Witness Unit—with responsibility for facilitating victim participation. The Rules should state that the Registry shall delegate any or all of its functions to the VWU as authorized under art. 43(6) of the Rome Statute to provide such measures for victims.

In our view, it is inadvisable to separate the functions involved in protecting victims/witnesses from those facilitating the participation of victims in the proceedings for the following reasons, among others: (1) It simplifies access for victims, avoiding confusion as to where they should go for different kinds of assistance; (2) it ensures that the needs of participating victims will, like those of victims and witnesses involved in providing testimony, will be handled by properly trained and sensitive personnel; and (3) it minimizes the danger of leaks regarding sensitive security or confidential matters.

At the same time, the Rules should not unnecessarily micromanage the Court. If it is decided, after experience, that all or part of these functions would be better carried out by a separate sub-unit, the Registry has the discretion to create such a unit and delegate the appropriate functions.

Certain of the above-described functions, particularly those listed in regard to notice in para. 1(b), 1(c), and 1(f), do not require the expertise of the VWU, but rather fall squarely within the responsibility of the Registry.

2. The Rules should identify a more inclusive, but nonetheless illustrative list of functions to be performed to assist the participation of victims in the proceedings. The Women’s Caucus supports this Rule and has added a few in capitals to flesh out the list of responsibilities and reflect more specifically the responsibilities delegated explicitly or implicitly by the Statute and the Rules of Procedure. All of the concerns suggested were mentioned in the course of the Workshop 2 at the Paris meeting; the final list was constructed hastily and with clear recognition that it was partial.

Recommendation 2: The VWU and Protection of Victims and Witnesses.

Rule A of the Paris Workshop should be incorporated in Part 4 with amendment to clarify the need for legal and gender expertise within the VWU.

Rule A (Article 43(6))

1. Protection should be afforded to all victims, witnesses, and other persons at risk on account of the Court’s proceedings, in accordance with their particular needs and circumstances. In this respect, the Victims and Witnesses Unit services the Court and defense.

2. The Victims and Witnesses Unit should include, inter alia, persons with expertise in the following areas:

• Witness protection and security
• HUMANITARIAN AND CRIMINAL LAW INCLUDING THE ICC STATUTE.
• Logistic administration
• Psychological expertise in criminal proceedings
• Trauma, in particular related to crimes of sexual violence and OTHER torture
• GENDER EXPERTISE
• Children, in particular traumatized children
• Social work and counseling
• Health care
• Interpretation and translation

3. The Victims and Witnesses Unit must ensure equitable gender representation in its staff.

4. The Victims and Witnesses Unit must ensure representation of people with different cultural perspectives on victimization and with different legal systems.

Commentary:

The Women’s Caucus strongly supports the enumeration of expertise needed in the VWU with the addition of the following:

Legal Expertise. For the VWU to perform its functions effectively, it has to have legal counsel on its staff equipped to understand and counsel witnesses in relation to the proceedings. This goes beyond the concept of “Legal/Administrative” in the Paris paper.

Gender Expertise. The proper functioning of the VWU with respect to women and victims of gender violence require personnel who have expertise in gender. In fact, the experience of the VWUs in both the ICTY and the ICTR led to recognition that this kind of expertise is critical to a range of concerns and functions of the VWU not confined to cases of sexual violence. Incorporating gender expertise among the VWU personnel is essential to ensure non-discrimination under article 21(3) as well as the proper treatment of victims of sexual violence and violence against women and children.

Rule B

To ensure efficiency and effectiveness of its work TO ENSURE PROTECTION OF VICTIMS AND WITNESSES, the unit shall:

-ensure that all staff, contract employees, and volunteers in the Victims and Witnesses Unit maintain confidentiality at all times.

-ENSURE SEPARATE STAFF AND FACILITIES DEVOTED TO SERVING DEFENSE WITNESSES AS OPPOSED TO PROSECUTION AND VICTIM WITNESSES.

-have sufficient, adequate and long term funding.

-recognizing the different interests of the Office of the Prosecutor OR DEFENSE COUNSEL and the witness, respect the interests of the witness, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers.

-have administrative and technical assistance available for victims, witnesses and other persons at risk on account of the court'’ proceedings, during all stages of the proceedings, INCLUDING INTERIM RELIEF AND AFTER TESTIMONY, on a 24 hour basis.

-ensure GENDER- AND CULTURALLY SENSITIVE training of its staff with respect to victims and witnesses security, integrity and dignity.

-where appropriate be able to enter into contracts in order to obtain supplementary assistance in other fields.

-where appropriate, cooperate with inter-governmental and non-governmental organizations.

Commentary:

Separate Facilities. It is absolutely imperative that separate facilities and staff be used for defense witnesses as opposed to prosecution and victim witnesses. This is necessary to minimize the danger of breach of privacy or confidentiality, to ensure that all witnesses’ safety and security is not compromised in any way and also to avoid any conflicts of interest.

The Caucus is concerned that witnesses have been at risk in the ad hoc tribunals where such strict separation has not been observed.

Interim Relief and Post-Testimony Assistance. Many witnesses will come to participate in the Court’s functions, as they now do in that of the ad hoc Tribunals, with immediate needs for assistance in the form of health care, HIV treatment, or other rehabilitative measures. The Rules should avoid any doubt, such as has had to be overcome in the ad hoc Tribunals, about the authority of the VWU to respond to these needs. In addition, in many cases, the greatest danger for witnesses exists after they return home. As drafted, the rule might suggest that there is no responsibility at this stage whereas this is a critical point for assistance from the Unit. We propose the inclusion of the words “including after testimony” to make this clear.

Gender and Culturally Sensitive Training. One of the purposes of requiring expertise in gender violence and different cultural perspectives is to ensure that the entire staff is sensitized to the difficult needs of the victims and witnesses they all serve. This should be explicit in the rules.

Rule C²

The areas of operation of the unit are protection and security matters, support, and negotiation and liaison with States.

The Victims and Witnesses Unit shall, inter alia:

-in accordance with article 43(6) recommend to the organs of the Court and relevant States the adoption of protection measures;

-AT THE EARLIEST REASONABLE OPPORTUNITY, inform victims and witnesses of their rights under the statute and rules, and the potential consequences of their testimony;

-formulate long and short-term plans for the protection of victims, witnesses and others at risk who have given testimonies, as necessary; in cases of victims of sexual violence, gender sensitive measures may be taken facilitating the participation and testimony of all stages of the court proceedings;

-ASSIST ALL WITNESSES NEEDING SEPARATE COUNSEL FOR THE PURPOSE OF PROTECTING THEIR RIGHT OF PRIVACY OR OTHER RIGHTS AND INTERESTS DURING THEIR TESTIMONY;

-act in co-operation with the States where the victims, witnesses and others at risk ARE LOCATED [omit: live] and States to which they might seek relocation;

-in consultation with the Office of the Prosecutor, provide training emphasizing the vital nature of security and confidentiality to all members of the Prosecution team on the conduct of investigations, in particular in emergency situations;

-in consultation with the Office of the Prosecutor, recommend the elaboration of a code of conduct, emphasising the vital nature of security and confidentiality for investigators and all organizations, as appropriate;

-in consultation with the Court, provide training to all members of the Prosecution team AND THE CHAMBERS on the issues of traumatization AND DISCRIMINATION.

Commentary:

Early Notice. Victims and witnesses need to have early access either to initiate involvement with the Tribunal or to receive advice about the process. The emphasis on information at the earliest reasonable time would encourage that.

Assistance to Witnesses Needing Counsel. This recommendation is echoed by that of the ICTY judges in their recent submission on the ICC Rules. It is recognized that both the prosecutor and defence counsel have a focus and interest, which may not necessarily be consonant with the individual interests of the witness they have called to testify. While witnesses before the Court are entitled to be assisted by their own counsel, some witnesses will not be so represented either because they do not perceive the need for such in advance or because they do not have the resources to pay counsel. On occasion -- and in particular in cases involving sexual and gender violence -- a witness will need to have separate counsel appointed in order to protect their right to privacy or other rights or interests which the Prosecutor is not charged with protecting or may not appreciate sufficiently.

The Rules should authorize the VWU to provide such assistance either directly through providing legal counsel from the VWU staff or through maintaining a list of and contacting qualified counsel when the need arises.

Training. Training on traumatization should be provided to all organs of the Court. The Women’s Caucus recommends that judges and their staffs be included in the training on traumatization to enable them to minimize further trauma in their treatment of witnesses as well as deepen their understanding of the process. We have added the need for training on discrimination, including gender discrimination, in order to ensure the operation of all organs of the Court consistent with article 21(3) of the Statute.

Recommendation 3: Monitoring Gender Representation and Expertise.

The Registrar should monitor the representation of women and men as well as the presence and distribution of experts in violence against women, inter alia, among all the personnel of the Court. The Registrar should report annually on the numbers of women and men on staff, and on the numbers of gender experts.

Proposed text:

“The Registrar shall report annually to the President of the Court on the numbers of women and men on staff in all organs of the Court, and on the numbers and distribution of experts in violence against women and children and other pertinent expertise. The President of the Court shall, based on these reports, report to the Assembly of States Parties on progress to ensure fair representation of women and men and the presence of gender expertise, and make appropriate recommendations. This report shall be released publicly.”

Commentary:

The Statute provides for a fair representation of women and men amongst judges and staff of the Court.³ In addition, the Statute indicates that States Parties are to take into account the need to elect judges with expertise on violence against women,⁴ and that the Prosecutor and Registry must keep the need for similarly-qualified staff in mind when hiring.⁵ As well, the Prosecutor will appoint special legal advisers, including those with expertise on sexual and gender violence.⁶ Finally, the Registrar must include staff with expertise in trauma related to crimes of sexual violence in the Victims and Witnesses Unit.⁷

It is important to ensure accountability for the Statute’s mandate for the fair representation of women and the incorporation of expertise on violence against women at all levels of the Court. This is consistent with numerable reports, resolutions and policies on the equality of women and men and gender mainstreaming within the UN and human rights system. Due to the long history of inadequate attention to sexual and gender crimes and the impunity enjoyed by perpetrators of such crimes, it is important that efforts to address this problem within the Court itself be reported on publicly. Importantly, this will encourage qualified women to apply for positions at the ICC and contribute to transparency in the hiring process.

Recommendation 4: Office of the Defence Counsel.

There should be established an office of defence as proposed by the Netherlands.

Commentary: