Witness Protection and Outreach Cited as Areas in Need of Improvement

International Criminal Court (ICC) Registrar Herman von Hebel agreed to speak with the Open Society Justice Initiative in June 2014. In the second part of the interview he addresses the witness protection issues at the ICC and what is being done to improve outreach.

TR: In the past year, a large amount of attention has also been drawn to the problems in the court’s witness protection regime. What steps have been taken to address this? Specifically, can you address the Kenya situation where there seem to be the most amount of problems?

HvH: The Victims and Witnesses Unit (VWU) is one of the most crucial sections of the Registry. Without witnesses – witnesses who are convinced that they can testify without fear for their own life – you won’t have cases. This is absolutely necessary. I think there are a couple of issues there. First on the structural level, we are looking at reorganization. We have had a number of reports, which demonstrated that the section was not working well. I think also the people in the section themselves are recognizing it. At one point also, you become tired of hearing [criticisms] again and again. There comes a point of saying let’s take actions now, let’s make decisions on how to address it. You don’t want to be told ten times that you’re not good.

The people on that team are desperate to … get that improvement in place. We have a new [Victims and Witnesses Unit] chief that is going to start as of next week and a new deputy who is going to start as of next week as well – people with a huge amount of experience. One of them has been working in the court in the past as well, has been traveling around and seeing a lot and is now coming back. On the structural level, in the next six months we will see major changes … and many decisions that will be taken in order to strengthen the work.

In the different cases, yes, the Kenya situation is posing tremendous challenges to us. We still feel as though we have our back against the wall in terms of the amount of protection that we have to provide and the cooperation and support from states that we need in order to be able to do so. It is one thing of taking witnesses out of the country, it is another thing to find another place where they can then stay and live and build up a new life.

With those two new chiefs, who both bring their own networks of contacts, I think we can make major strides also in strengthening our capacity to absorb the witnesses that need that level of protection. At the moment, it is still very delicate. It’s not a stable situation. We continue to have witness issues in Kenya. We continue to be barely able to provide the protection we are able to do. We are able to do it, but it’s still a vulnerable situation. I hope that also the new leadership will be able to change that and wherever I can assist, in my travels and contacts, I will certainly do so.

TR: Staying with Kenya, in the trial of William Ruto and Joshua Sang, there have been instances of mistranslations by Swahili interpreters, which have led some people in Kenya to question the competence of the court. Is there anything being done to remedy this?

HvH: This is another major issue. If I have the record straight, we have been providing translations or interpretations in 37 different languages for all court proceedings so far. Sometimes in languages – Lingala is one of them – there is hardly even a written language. If you need translation from French into English, or English into French or Spanish or one of the … UN languages, you are normally able to rely on people with a huge amount of training. Those people go to school and training for a number of years. With so many of the other languages, this is not possible.

I had the same experience in [the Special Court for] Sierra Leone. There were four different languages spoken, and we had people making those interpretations. You don’t have five or six years-time to really properly train, so the challenge to get as close as possible to the same quality as what you would expect normally is very difficult. Of course, we have to keep in mind this also is a very legal context. You are dealing with court proceedings. There’s a lot of legal language involved. That makes it even more complicated. Even sometimes if you have an English to French interpreter who doesn’t deal with legal issues, that person can get lost, let alone someone who hasn’t had that five or six years of training and has not even had training on legal issue as well.   It is simply an incredible, difficult exercise and, frankly speaking, I am happy for the fact that [mistranslation] hasn’t happened more often. Those glitches will stay.

It is a question of explaining why it is the case. I think given that the small amount of notices that I get about those problems to a certain extent shows that we are doing not that bad. Of course those glitches do come up every now and then.

TR: Last year, you also mentioned outreach and engagement with civil society in situation countries as a priority. Has anything been changed in the way the court undertakes outreach activities? Does this include strengthening the ICC’s field presence?  

HvH: Outreach remains an important issue for me. It’s part of a wider picture. It’s also why over the last few days in the whole Revision [Project] we spoke about our field operations. I think you have to put it in that wider perspective. We have to be more flexible as a court, and I speak as a court – not necessarily only as Registry.  As a court we have to be more flexible in situation countries. We have to better communicate about what we are doing. And why sometimes, like in the language issue we just discussed, why it is an issue and why it is such a challenge.

At the same time, of course, we have to have to reach out much more to affected communities, victims that are entitled to participate. That is a huge additional asset of the court. All those operations in the field have to be better organized in order to be maximally flexible … to be able to rely much more than we probably at the moment do on the expertise of embassies that are there, the government themselves, civil society organizations – national, local, international – in order to have a better idea in what type of context we operate, but also for people in the country, affected communities and others to be in contact with us and to understand our work.

The frustrating thing about outreach is that you can never do it enough.  Even if you do 100 or 200 events every year, you still reach out to a relatively limited part of the population. Also, in some of the countries, it depends on the country; mass media is in different states of development. Radio is very important in many parts of the African continent, so you have to focus on that. What is very important is the personal contacts. That people can directly put a question to you and you can directly answer that question. That is very important, very labor intensive and, of course, you need to have resources in order to do it. But the obligation that we have as a court is to maximize the effect of what we can achieve with those limited resources in order to have the maximum impact in the country. It is something we can’t do on our own. We need the assistance. We need the cooperation of states, NGOs, civil society organizations, etc.

TR: Related to outreach, in the recent series of events relating to the witnesses from the Katanga and Ngudjolo case who sought asylum in the Netherlands, there was confusion in the Democratic Republic of Congo (DRC) over the court’s role in the issue. For example, some believe the ICC should prosecute the witnesses if they are to have committed crimes or that the ICC only allows protective measures for prosecution witnesses. This should be flagged as an area where outreach should continue.

HvH: I agree. It is nearly impossible to explain the whole situation around the three detained witnesses. I was doing an interview for Dutch television a few weeks ago and they got it nearly right but not perfect either. It was a hopelessly complicated one – both the court was in a bind and the Netherlands was in a serious bind. On the one hand, the appeals chamber made it very clear, and I fully agreed with, that we are not a detention facility for Dutch asylum seekers. Those three detained witnesses came to the Netherlands in order to testify and after were to return to a place where they were faced with very serious charges. I have no opinion of the guilt or innocence of them because that is something for the DRC authorities to determine.

They came here, they did testify, and then sought asylum, which is their fundamental right. I will never go against that. But the process in the Netherlands is a very slow and long one. It took them more than three years, and hopefully in the course of this week or next week they might get a final decision. In the meantime, they were in our detention. The appeals chamber simply got impatient and said this is not our role to do detention. There is a cost element to that as well. That’s why in the end with the host state we agreed to hand them over to the Dutch in order to have them in their jurisdiction. But at the same time, I still feel obliged – because of the agreement with the DRC and the court that after their testimony they should come back to the DRC – because they need to face the charges against them.

They came here as witnesses, and you cannot say halfway through that yesterday you were a witness and today you are an accused. That’s not the way you can do that. With hindsight … the next time we have detained witnesses you better organize video link.  I think that solves the entire problem. Of course it is a right for a judge to determine how best to get the evidence presented, so if there is a specific need for a judge or for a bench to say we want to hear them live, then that of course needs to be organized. If that is not necessarily required then of course video link is much easier.

At the same time, the host state was in a difficult position because, on the one hand, they have the obligation to work with us as we requested them to assist us to bring them back. We can’t do that because we have this case before the Dutch court. There are also human rights issues involved over there, so we can’t help. They were in a bind. We were in a bind, and at the moment the only one that can get it sorted out is the Dutch court. I don’t think that there is anyone that you can find that has been heavily involved in this discussion who is happy about how this has happened, and we all have to take our lessons learned.


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