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Comment on the Sexual and Gender-Based Violence Question: “How can the ICC OTP secure better cooperation from first responders and those working on the ground with victims and survivors to assist in the investigation and prosecution of Sexual and Gender-based Violence (SGBV)?”
Witnesses and the International Criminal Court: A Mutual Reliance
In March 2014, German Katanga was acquitted for the crimes of rape and sexual slavery as crimes against humanity and as war crimes. During the pre-trial phase of the Katanga case, witness protection issues came up that jeopardized those charges from being brought. Prior to the confirmation of charges hearing, the OTP was forced to drop all sexual violence charges “because of an internal dispute over witness protection…for two witnesses whose testimonies could have backed up the charges.”1 Charges were dropped because of inadequate witness protection. First, this example demonstrates the importance of testimonial evidence for prosecuting sex and gender-based crimes (“SGBC”), as documentary and forensic evidence is often limited. Second, this example also demonstrates the importance of witness protection and how witness protection can influence whether or not an SGBC charge can be brought.
Since the ICC’s inception in 2002, at least 199 witnesses have testified before the ICC on alleged charges in seven cases.2 “The Court relies on witnesses, and in turn they rely on us to ensure that they are not harmed as a result of their interaction with us. We therefore have to ensure that their interaction with the Court is a successful one.”3
The ICC, specifically the Registrar, is in the best position and has the authority and responsibility to protect their witnesses. As Amnesty International’s CAR expert Godfrey Byaruhanga asked, “If the ICC does not have the capacity, then who does?”4 Because first interactions with witnesses are more likely than not from non-ICC entities—first responders, NGOs and others already on the ground—the prosecution and defense relies on the cooperation of these entities to build relationships with these potential witnesses.5 These non-ICC entities are less likely to cooperate if they know that turning over a vulnerable individual to the care of the ICC could lead them to potential harm and danger. It would be difficult for the prosecutions of SGBC to succeed without the assistance and support of these non-ICC entities. Since the willingness of NGOs and other first responders to cooperate with the ICC is likely dependent on their trust of the ICC’s ability to protect victims and witnesses, without taking greater responsibility to strengthen witness protection, first responders on the ground will be discouraged to assist the prosecution of SGBC.6 Thus, in order to successfully prosecute SGBC, the ICC needs to start by improving their witness protection program.
This Comment argues that NGOs and other first responders are more likely to cooperate with investigations if the ICC demonstrates a stronger responsibility to protecting their witnesses by strengthening witness protection. Part I describes the ICC’s current witness protection program. Part II compares the ICC’s current program to the United States’ witness protection program and Kenya’s relatively new program. I chose the U.S. and Kenya programs because I wanted to compare the experiences of two programs with different levels of maturity, different amounts of resources available, and different types of cultures. Finally, in Part III, based on these two domestic programs, I suggest how the ICC can tailor the characteristics and tools of the two domestic programs to fit its needs.
I. Current ICC Witness Protection Program
The Victims and Witness Unit within the Registry is to provide protection and assistance to any witness that appears before the Court. The Unit can provide protection through the ICC Witness Protection Program. The ICC Witness Protection Program is hosted by the Registry, and acts upon referral or request by the prosecution and defense, at any stage of proceeding. When a witness is referred to the Registry, the witness is interviewed to assess what the threat is and protection program the witness would fit into.7 The witness can be placed in a safe place for days or months, resettled within the country, or relocated to another country, depending on whether short and/or long term protection is required.8 Relocating to other countries requires cooperation agreements with States Parties and other partner nations, upon formal agreement.9 According to Article 86 of the Rome Statute, states parties are to cooperate fully with the court in its investigation and prosecution of crimes, which includes the protection of victims and witnesses.10 But, “States parties have been reluctant to provide relocation agreements or accept witnesses on an ad hoc basis.... restrict[ing] the ability…to relocate witnesses, which compromises their safety.”11 In addition, the Gender and Children Unit within the OTP, “comprised of staff members with expertise on investigating and handling cases involving sexual and gender violence, seeks to provide potential witnesses with a ‘human touch,’ integrating psychosocial support into investigations and interviews.”12
II. The Experiences of Other Programs
A. U.S. Domestic Witness Protection Program
In the United States, the Marshals Service is in charge of witness protection. According to their website, “The Witness Security Program has successfully protected an estimated 18,500 participants—including innocent victim-witnesses and cooperating defendants and their dependent family members—from intimidation and retribution since the program began in 1971.” Witnesses in the U.S. are first sponsored by the U.S. Attorney, and then hosted by the Marshals after preliminary interviews and approval by the DOJ.13 During this process, the Marshals balance the need for the person’s testimony with the potential risk of harm to all parties.14
Witnesses who qualify under the program are protected and offered relocation when necessary. A witness’s “immediate family or a person closely associated with the witness if that person was also in danger” is also protected under the program. Protection begins prior to trial and “continue[s] for as long as these people are, in the Attorney General’s judgment, in danger.”15
In addition to basic protection, the U.S. Marshals have given new identities and provided basic necessities, including financial assistance for housing, food, medical care and employment assistance.16 The level of protection also varies according to the level of threat in the environment. For example, the Marshals can provide up to 24-hour protection when the witness is in a high threat environment during pre-trial, trial and other court appearances.17 In addition to relocation protection where new identities are given, the U.S. protection program also provides for emergency and temporary witness protection as a less costly way of protection and relocation witness within the time of the trial (including short time before and after trial).18 However, critics have emphasized that this temporary service “require substantial personal investment and time commitment on the part of local police and prosecutors,” a luxury the ICC may not have.
B. Kenya’s Witness Protection Agency
Although Kenya’s protection agency is a relatively new program, it is the second witness protection program established in Africa. Because it is still a new program, there are notable limitations and improvements to be made of its own. However, there are still lessons that can be learned, particularly those aspects of the program that are tailored to the needs of an African-based program.
According to their website, a protected witness is defined as “[a] witness or person related to the witness who has reason to believe that his/her safety is or may be under threat by reason of being a witness or being related to a witness,” even if “[h]e/she is required to give evidence before a court, commission or tribunal outside Kenya.”19 Anyone who fits under this definition can request for protection from the Witness Protection Agency.20 Witness protection begins the moment he is admitted into the program.21 However, Kenya does not provide information on when this protection is to end.
Specifically, Kenya has certain protective measures tools in place. The agency is an independent agency with its own funding.22 The agency provides short and long term protection services, including: physical police protection, identity change, relocation, and other support services (such as accommodation, transportation, child care, medical care, psychological support, etc.), based on an assessment and action plan conducted for each witness.23
Short-term protection includes temporary relocation to safe houses, or, where deemed safe, to the residence of relatives.24 Long-term protection considers the witness’s pre-admission standard of living, so that it could be closely replicated post-protection.25 During the process, the agency provides financial assistance until the witness can be self-sufficient.26 In addition to financial support, the agency provides psychology support service to help familiarize the protected person to the environment and culture of his new locale and to ensure that confidentiality of his past is maintained.
Based on its two years of running, the Agency has run into some known limitations. First, there are serious budgetary constraints to running a witness protection program. This is a known limitation that most, if not all, protection programs face and will face.27 Second, the Agency faced challenge with both internal and external relocation. Despite providing the protected witness with an alternative identity, links between cities and interstates and the witness’s characteristics (i.e. his spoken language and accent) makes it easy for neighbors to question the witness’s new identity. And, in terms of external relocation, the Agency is faced with limited cooperation from other states to grant visa access to their protected witness.
III. Application to the ICC and Recommendations
The ICC’s witness protection program obviously cannot completely replicate domestic programs. The objectives of an international program differ from those of a domestic system: the ICC must serve the need of witnesses from different sates and a variety of different cultures, while a domestic system serves its own citizens. Domestic systems often have the support of local police forces and it can be easier to gain cooperation with neighboring states when negotiating between states. Thus, the ICC will undoubtedly have a more difficult time building a robust witness protection and must draw from the experiences of other domestic programs and modify to meet its needs.
First, the ICC should more clearly define who is eligible to request for protection from the program. Similar to the domestic programs of Kenya and the U.S., witnesses, their immediate family, and other persons closely associated with the witness who may be in danger should be protected under the program. This may be very difficult for the ICC, since potential witnesses are often from villages and rural cultures where the whole village is closely associated with each other. However, the ICC should consider such parties as eligible for protection, but begin an assessment of their need of protection. Perhaps some of the witnesses’ neighbors and closely related relatives only require temporary relocation and protection.
The ICC’s witness protection program should begin assessment and the creation of an action plan when the parties are finalizing the decision to use the candidate as a witness. Within the action plan, it should include plans for potential temporary and permanent relocations, assessments of the witness’s pre-admission standards of living, and other social services that may be required during the time of protection.
Witness protection should not end until the agency is confident in the witness’s safety. And in cases where permanent relocation is involved, protection should not end until the witness is able to self-sustain in his new environment.
Similar to the U.S. program, the ICC should consider temporary witness protection and relocation as a better alterative to permanent relocation, and only consider permanent relocation when absolutely necessary. However, the U.S. relies on its local police force for temporary witness protection. Either the Registry or another local entity in the Netherlands will have to take over that role. Beyond physical police protection, like the programs in Kenya and the U.S., protection must include providing social services such as accommodation, transportation, medical care, psychological support, etc. This will require the Registry to work closely with the cooperating state to ensure that these services are provided for.
When permanent relocation is absolutely necessary, the Registry must rely on previously established partnerships with States Parties to gain visa access for its witnesses. In order to do this, the first step is to build these partnerships with States Parties. The support and cooperation of the States Parties is needed to establish a specified number of visas that can be granted specifically to ICC witnesses. Then, when assessing which cooperating state the witness can and should go to, the Program must consider the witness’s cultural background and characteristic, and the witness’s pre-admission standard of living.
The Registry should also provide psychological services similar to the service provided in Kenya, where they have staff psychologist to help witnesses adopt to the new environment and culture they are about to settle.28 Specifically, the staff must stress the importance of maintaining confidentiality of their past, which may be particularly difficult to accomplish for ICC witnesses as it is often the case that the witnesses are from very close-knit environments where confidentiality would be nearly impossible. Currently, the Gender and Children Unit within the OTP provides some psychosocial support while conducting investigations and interviews. The Registry should take a greater leadership role over this, while continuing to govern witness protection concerns of all ICC organs.
Without a doubt, creating a robust witness protection program is difficult, and even more so when building an international program. However, strengthening witness protection is a project the ICC needs to divert energy and resources to. NGOs and other first responders will more likely cooperate in the investigation of SGBC, if the ICC demonstrates a stronger responsibility to protecting their witnesses.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Taylor Toeka & Katy Glassborow, Sexual Violence Charges for DRC Cases Scrapped, IWPR (Jun. 3, 2008), available online. ↩
Figures were provided to the International Bar Association by the ICC Registry on March 6, 2013. Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme Report on the ICC’s Efforts and Challenges to Protect, Support and Ensure the Rights of Witnesses, Int’l Bar Assoc. (Jul. 2013), 14, available online ↩
Id. at 27. ↩
Toeka & Glassborow, supra note 1. ↩
In fact, “[i]n the initial stages [prior to investigation] non-governmental organisations, displaced communities, inter-governmental organisations, hospitals and other sources provide a list of potential witnesses.” See Chris Mahony, The justice sector afterthought: Witness protection in Africa, Inst. For Sec. Studies (2010), 32, available online. ↩
Toeka & Glassborow, supra note 1. ↩
Victims and Witnesses Unit, Int’l Crim. Ct., available online (last visited Apr. 9, 2016). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. See also Mahony, supra note 5, at 54. ↩
Mahony, supra note 5, at 54. ↩
UCLA School of Law International Justice Clinic & AIDS-Free World, Safety Denied: Victim and Witness Protection in Sexual Violence Cases, 6 (May 2011), [hereinafter Safety Denied], available online. ↩
Witness Security Fact Sheet 2016, U.S. Marshals Service [hereinafter Fact Sheet 2016], available online, archived. ↩
Nicholas Fyfe & James Sheptycki, International Trends in the Facilitation of Witness Co-operation in Organized Crime Cases, 3 Eur. J. of Crim. 319, 321 (Jun. 12, 2006), available online. ↩
Fact Sheet 2016, supra note 13. ↩
Fact Sheet 2016, supra note 13. ↩
Nora V. Demleitner, Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options?, 46 Am. J. Comp. L. Supp. 641, 659 (Jan. 1, 1998), available online, archived. ↩
Application & Admission, WPA–Kenya, available online (last visited Apr. 9, 2016). ↩
Mahony, supra note 5, at 124. ↩
Id. at 126. ↩
Yvon Dandurand & Kristin Farr, A Review of Selected Witness Protection Programs: Report prepared for Organized Crime Division, Public Safety Canada (2010), 25, available online. ↩
Mahony, supra note 5, at 126. ↩
Vincent Mabatuk, Witness Protection Agency assures witnesses of safety, Standard Digital (Kenya), Jun. 7, 2013, available online. ↩
See, e.g., Safety Denied, supra note 12, at 3 (describing that psychosocial and medical support is “[o]ne of the areas in which international tribunals excel” in, and emphasizing how “[p]rotection involves not only physical protection but also treatment for the kinds of recurrent emotional and physical harms that often come from the trauma of sexual violence.”) ↩