Expert: "Relocation of a witness does not entail life protection by the ICC"

Earlier this month, the Kenyan daily newspaper, The Star, ran a story quoting witnesses believed to be preparing to testify before the International Criminal Court, claiming they are negotiating “life protection” with the court. The Star described the unnamed individuals as witnesses for the prosecution. To better understand the International Criminal Court’s witness protection program, I interviewed Mariana Pena, the Permanent Representative at The Hague of the International Federation for Human Rights [FIDH].

What is the general practice of the ICC as far as protecting witnesses who require or request for protection?

At the outset, I must say that as an NGO representative I am not privy to many details of the ICC protection practice. For security reasons, most policies in this area are kept confidential. The information I will share is based upon FIDH’s research and experience in monitoring the ICC.

The court can offer different levels of protection. For example, measures can be taken in-court to avoid the witness from being recognized outside the courtroom (e.g. face and voice distortion) or from being psychologically harmed from contact with the accused (e.g. testimony by video-link). There are also measures which seek to protect the witness from possible reprisals on the ground. When one of the parties considers that a witness could be at risk, they must file a request for protection with the Registry of the Court. The registry assesses the witness’ security situation on the basis of standard criteria and makes a decision. If the finding is positive, then the witness enters the ICC Protection Program. This entails a number of measures, including, when relevant, relocation within or outside the country. Measures like relocation apply also to the witness’ immediate family.

Has the ICC ever offered a witness “life protection”?

To my knowledge, that is not the way the ICC works. The court offers protection at a point in time. It is still unclear what happens after a trial has ended and/or the court is no longer engaged in a situation. Drawing from the experience of other tribunals, it is possible to say that participation in the protection program will need to come to an end at a certain point. This is not only because it is costly, but also because security risks will necessarily decrease after some time. It is possible though, that persons who have relocated to another location will remain there for the rest of their life. This does not necessarily entail a “life protection” by the ICC.

From what you know, have there been any limits on the protection offered to witnesses who testify before the ICC?

Yes. As I said before, the ICC must assess the need for relocation in view of a set of standard criteria. If the criteria are not met (i.e. the court considers that the person’s security concerns do not warrant entry into the ICC protection program), then protection is not granted.

In addition, entry into the protection program is very demanding to witnesses, who must comply with a set of rules imposed by the court (for example, a witness who is relocated must not have      contacts with his/her previous environment). If those rules are broken, the court could decide to limit protection. Also, protection and especially financial support for measures such as relocation are limited in time.

Have there been challenges during any case before the ICC questioning the protection of witnesses or the testimony they have given before the court?

Yes, there have been challenges. As I said before, very few of these proceedings are public. When it comes to witness protection, most litigation is done confidentially.

In earlier years, there was litigation as to the standards applied by the registry to assess the witness’ security situation, as well as the role of the Office of the Prosecutor in applying preventive protective measures (since the assessment and implementation of measures by the Registry normally takes some time). There have also been questions about the type of protection which is necessary and adequate for a certain witness and their family. To my knowledge, most litigation is initiated by the party who requested the protection and in the interest of the witness’ security. The chambers play an important role, as they make final decisions in relation to protection matters.

Are you aware of any controversies surrounding the witness protection program of the ICC?

FIDH has identified some gaps in the ICC protection program and has advocated for measures to be taken to solve those problems. One of the most prominent advocacy point we have put forward is that the court ought to protect “intermediaries” who are at risk on account of their relationship with the court. We have also recommended that the court improve protection mechanisms for victims participating before the court. Finally, we have also advocated for “intermediary” or “middle-ground” measures to be taken. These are specifically protection measures falling short of relocation.

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