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Judges at ICC Decline to Grant Protective Measures to Upcoming Prosecution Witness

Trial judges at the International Criminal Court (ICC) have declined to grant protective measures to a witness due to testify against former Congolese rebel commander Bosco Ntaganda in his ongoing war crimes trial at the court based in The Hague.

In an oral ruling delivered this afternoon by presiding judge Robert Fremr, the chamber found that, given Witness P043’s current location and the nature of his anticipated testimony, there was no objectively justifiable risk to the witness or his family to warrant the use of image and voice distortion during public broadcasts of his testimony.

Judges said the unnamed individual’s prior involvement with the court is “publicly known.” They added that the prosecution’s submissions regarding the current risks to the witness were “based solely on the witness’s own assessment and opinion.”

While the Victims and Witnesses Section (VWS) – the organ of the court tasked with witness protection and affairs – recommended that the protective measures sought by the prosecution be granted, judges found that the VWS’s assessment was also based on the witness’s own assessment of the situation.

“While subjective opinions may be relevant, they are not determinative and the chamber does not consider that these [prosecution and VWS] submissions show objectively justifiable risk in the absence of other supporting material,” said Judge Fremr.

The defense opposed the application for protective measures for the witness, arguing that prosecutors had failed to substantiate the request with relevant security information.

Yesterday, testimony that Witness P043 provided in an earlier trial at the ICC was admitted into evidence under Rule 68(3). In an oral ruling, judges granted the prosecution one hour to question him during his scheduled appearance at the court next week, while the defense was granted three hours. It remains unclear whether Witness P043 will appear as planned.

In today’s ruling, judges acknowledged the “courage” of individuals willing to testify publicly and said they would be “grateful” to have such witnesses. Other than expert witnesses, only three prosecution witnesses in Ntaganda’s trial have testified without protective measures. Two of them had no protections at all.

Today’s ruling is the second in the trial where judges have declined to grant full protective measures to a prosecution witness. In February 2016, judges declined to grant full protection to Witness P039, finding it “inappropriate” to increase the level of measures from partial protection. In October 2015, when judges initially offered this witness partial protection, he declined to testify, citing security concerns.

Earlier today, Witness P005 completed his week-long testimony via video link, all of which was given in closed session.

 

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