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Judges Reject Additional Protective Measures for Witness

International Criminal Court (ICC) judges have declined to reconsider the in-court protective measures granted to a prosecution witness in the Bosco Ntaganda trial, finding it “inappropriate” to increase the level of measures from partial to full protection.

Judges Robert Fremr (presiding), Kuniko Ozaki, and Chang-ho Chung ruled that prosecution submissions regarding the personal circumstances of the witness did not warrant “exceptional” reconsideration of his use of a pseudonym to further include face and voice distortion during public broadcast of his testimony.

According to the judges, all security information relevant to the witness was in the chamber’s possession when it rendered its initial decision on partial protective measures. They ruled that the prosecution’s submissions for reconsideration failed to demonstrate “any clear error of reasoning” or injustice, including to the well being of the witness.

The witness in question goes by the pseudonym Witness P039. He was the sixth witness to be called by the prosecution in Ntaganda’s war crimes trial at the ICC and appeared before judges on October 28, 2015 via video link. However, upon being informed that the chamber had granted him partial protective measures, the witness said he was unable to testify due to security concerns.

Judges had not granted the witness protective measures of voice and image distortion prior to his initial appearance, arguing that the use of a pseudonym would “sufficiently mitigate any risks to the witness’s security.” The judges’ decision was informed by a vulnerability assessment conducted by the court’s Victims and Witnesses Unit (VWU).

When the witness declined to testify on the day he took the stand, the prosecution requested judges to reconsider their earlier decision or, in the alternative, compel the witness to testify. This request was rejected in an oral ruling on the same day.

On November 3, 2015, the prosecution filed a written request seeking that face and voice distortion, in addition to the use of a pseudonym, be granted to the witness. While lawyers representing victims in the trial supported the prosecution’s requests, the defense objected.

The judges also rejected the prosecution’s request for leave to appeal on December 10, noting that the decision concerns “one crime based witness only” and thus has no direct impact on the prosecution’s ability to call other witnesses to ensure a fair and expeditious trial.

Witnesses that appear before the ICC may sometimes be at risk of reprisal attacks. Many individuals who have testified in ongoing trials have done so with protective measures in order to protect their identities. Many witnesses have also given most of their evidence in closed session, with the names of individuals, places, and organizations that could give clues to their identity rarely mentioned in open court.

In addition to protective measures being put in place to conceal identities of witnesses from the public during hearings, psychological support, counseling, and security mechanisms, such as relocation, are sometimes employed by the court’s organs before, during, and after testimony.

So far, only one witness in the Ntaganda trial has testified without the use of protective measures. This was Roberto Garretón, also known as Witness P931, the former United Nations Special Rapporteur for Human Rights in Congo.

On Thursday, February 4, Witness P017 completed giving evidence in the trial. The majority of his week-long testimony was conducted in closed session.

In opening statements on September 3, 2015, defense lawyers criticized the planned use of closed sessions during the testimony of some witnesses, which they argued would deny Ntaganda the right to a public trial and undermine efforts to establish the truthfulness of testimony.

Hearings are scheduled to continue in Monday, February 8.