Witness Protection in International Criminal Court

Abstract: The witness is universally considered to be one the most instruments to ascertain the truth in criminal proceedings or as Bentham says “Witnesses are the eyes and the ears of justice.” Under the International Criminal Court (ICC)’s legal framework, witnesses who testify before the Court, persons at risk and their interaction with the Court because of testimony at the ICC are entitled to the protection of the Court not as a party, rather than an instrument to produce evidence. The witness protection remains a challenging issue at the ICC with the potential to seriously jeopardize the efficiency of the Court’s proceedings. Protection of witnesses is a complex and demanding task for any criminal jurisdiction especially for the international jurisdictions. One of the reasons is that neither the Rome Statute nor RPE give an official definition of the term “witness”. Apart from a great reliance upon live evidence, the nature of the crimes and the fact that the Tribunals are international and highly public necessitated the development of the witness protection regimes. In contrast to national regimes, the international jurisdictions do not have their own police forces and are dependent upon State authorities, peacekeeping forces or others in order to offer the more robust forms of protection. We are all aware that there is growing recognition of the special role of witnesses in criminal proceedings and that their evidence is often crucial to securing the conviction of offenders, especially in respect of the core crimes provided in the Rome Statute. The witness protection measures should be taken only when they are necessary in order to satisfy the legitimate aim of protection. The effect of protective measures depends mostly on the respecting of those measures implemented in practice. An important element here is that, ICC’s orders need to be respected in general but, additionally, witnesses must be able to count on the protection provided for. Among the problems in protecting witnesses in other Special Tribunals such as International Criminal Tribunal of Former Yugoslavia (ICTY) and International Criminal Tribunal od Rwanda (ICTR), the concern falls upon if the identity of the witnesses becomes known to more people than the Judges, Registrar and the parties to the proceedings, this may result in negative consequences for the witness and/or his or her family. Disclosure of information still remains in vain. Less is written about the witness protection measures as a comparative approach between ICC and the ad hoc tribunals. Hence, my research will provide that the Statute of ICC also contains regulations concerning the protection of the witnesses appearing to the Court, based on the experiences from other International Criminal Tribunals (ICTR and ICTY) which have shown the importance of the protection and assistance of witnesses in order to contribute in the establishment of the truth about the most serious crimes committed. Since the ICTY is the most experienced international criminal tribunal regarding witness protection, I will analyze its Statute, Rules of Procedure and Evidence, especially ‘The Victims and Witnesses Section’ (VWS).