All eyes of the international justice community will be on the 15th session of the Assembly of States Parties to the Rome Statute (ASP) beginning today in The Hague. There is no doubt that one of the biggest issues States Parties must address is the recent withdrawal of three African countries from the International Criminal Court (ICC). While this reflects the larger political troubles the court faces, there are also significant internal challenges the ICC must address in relation to its ongoing investigations and trials.
The Open Society Justice Initiative has conducted research that suggests that witness interference has been alleged in nearly every case before the ICC. Actions aimed at interfering with witnesses and their testimony impede due process, undermine the rule of law, put ICC cases in peril, and weaken the credibility of the institution. Witness testimony has been the main form of evidence in all cases of grave international crimes before the ICC, which makes this problem one of the most urgent challenges facing the court. Our research, summarized in this briefing paper, comes from a comprehensive survey of publicly available information on witness interference in cases before the ICC.*
Witness interference―also known as “witness tampering” in certain legal systems―is the act of perverting, or attempting to pervert, the course of justice by altering the content of a witness’ (potential) testimony and/or preventing them from testifying. Witness interference occurs when a witness and/or their loved ones is subjected to threats, extortion, bribery, and/or other forms of coercion and/or bodily harm and/or death.
The ICC is mandated to protect the safety and well-being of witnesses and the integrity of their testimony. The court is also empowered to prosecute offenses against the administration of justice including “corruptly influencing a witness; obstructing or interfering with the attendance or testimony of a witness [and] retaliating against a witness for giving testimony.” So should be States Parties, who, according to the Statute, commit to penalize such offenses.
Out of the nine ICC cases involving charges of crimes against humanity and/or war crimes that have reached the trial stage―which address crimes in the Democratic Republic of Congo (DRC), the Central African Republic (CAR), Kenya, Côte d’Ivoire, and Uganda―our research has found allegations of interference in at least eight: Lubanga, Katanga & Ngudjolo, Bemba, Muthaura & Kenyatta, Ruto & Sang, Gbagbo & Blé Goudé, Ntaganda, and Ongwen. The only case in which we found no public reference to witness interference allegations was Al-Mahdi, a unique case in which the accused issued a guilty plea.
Witness interference at the ICC appears not to be spontaneous or opportunistic; rather, patterns indicate well-coordinated and broad schemes or networks of perpetrators. At times, the networks have involved offenders working together from several countries. These networks have often sought to interfere with numerous witnesses, in a clear attempt to undermine cases.
The implications of witness interference are far-reaching. Witness interference can undermine the rule of law, obstruct the court’s truth-finding function, and distort case outcomes, leading to wrongful convictions or acquittals, or unfair termination of cases for other reasons. In addition, a resource drain results from the need to investigate and prosecute article 70 offenses, and because every organ of the court must monitor and inquire into actual or potential interference and adopt preventive measures. Finally, over time, the ICC’s legitimacy could be eroded by repeated patterns of witness interference, as cases fall apart, witnesses are harmed or killed, potential witnesses decline to come forward or withdraw their testimony, and ICC proceedings become increasingly protracted or suffer other ill-effects.
Addressing witness interference presents a number of challenges. First, effective protection programs are essential to shield witnesses from tampering. State cooperation for witness relocation must be strengthened, including by conclusion of standard or ad hoc witness relocation agreements and by speeding up the process of responding to the court’s requests for relocation.
Second, the court must ensure that measures taken to monitor and deter witness interference are respectful of the rights of the accused; that includes affording the defense an opportunity to be heard in relation to preventive measures, to the to the extent that such steps do not further expose witnesses or affect ongoing investigations.
Third, when concealing the witness’ identity is decided as a measure of protection, anonymity from the public must be ensured. The court must avoid any incident that results in disclosing the identity of protected witnesses.
Last but not least, States Parties and other stakeholders must support the Office of the Prosecutor’s (OTP) investigation and prosecution of witness tampering. However, the OTP lacks the capacity and resources for systematic investigations and prosecutions of these offenses. States Parties also must also investigate and prosecute witness interference acts that amount to offenses against the administration of justice committed on their territory.
Together with the Republic of South Korea, the Justice Initiative will host a side event on witness interference at the 15th session of the Assembly of States Parties on November 23, 1:00-3:00pm, at the World Forum Convention Center in The Hague.
* The Open Society Justice Initiative acknowledges consultant Danya Chaikel for the research she conducted on this project.