The Kenya and Congo examples show that there is a performance problem with the ICC’s security and protection for its witnesses and for witnesses involved with the ICC’s proceedings. Various witnesses have been tampered with and bribed as shown above. Even more devastating is the fact that some witnesses have disappeared or have been killed. The ICC’s witness protection methods need to be measured against performance indicators to determine whether the ICC’s methods are successful. A good measurement on the ICC’s performance would be to use the United States Witness Protection Program as a performance indicator.

The United States Marshals run the United States Witness Protection Program, also known as the Witness Security Program (“WITSEC”).27 The WITSEC was authorized by the Organized Crime Control Act of 1970, and has “protected, relocated and given new identities to more than 8,600 witnesses and 9,900 of their family members.”28 The WITSEC is an ideal performance indicator because they have never lost a single witness or a witness’s family member that participated in the WITSEC.29 However, before we look at whether the WITSEC can be adequately used as a performance indicator, the methods employed by the WITSEC and the ICC needs to be identified.

The WITSEC has “never lost a witness who adhered to the rules of the program.”30 The WITSEC’s success seems to be from the methods the WITSEC employs to protect its witnesses.31 The WITSEC has a conviction rate of 89% because of testimonies offered by protected witnesses, whereas “[u]nprotected witnesses generally prefer not to testify.”32 Witnesses that are accepted into the WITSEC are immediately taken, with their families, to a temporary holding area.33 Witnesses are given 24-hour protection while in high-threat areas such as pre-trial conferences, during trial, and other court appearances.34 Some of these locations can withstand bomb blasts.35 The relocated witnesses and their families are then relocated to an entirely new area, and they are given new identities with authentic documentation.36 They are given salaried jobs, counseling by psychologists,37 and some have even been allowed to change their school grades or have been given plastic surgery.38 However, the witnesses nor their family members can contact anyone from their previous life and must keep in continuous contact with the United States government.39

On the other hand, the ICC uses relocation only as last resort and when it is absolutely necessary.40 The relocation will take the witness and his family members to a safe location, inside or outside his home country, either temporarily or permanently.41 The reason relocation is a last resort is because of the immense burden on the relocated person.42 Other methods employed by the ICC include operational and procedural protective measures.43 Some operational measures include a 24-hour emergency system where if a witness is in danger, the ICC will take the witness to a safe location.44 Other operational measures include educating witnesses on having emergency backup plans and the importance of confidentiality.45 Some procedural measures include face and voice distortions, using pseudonyms for witnesses, and psychological services.46

II. The WITSEC as a Performance Indicator

Using the WITSEC as a performance indicator to measure the ICC’s success in witness protection would be effective because the WITSEC has never lost a witness.47 The WITSEC would be the most efficient a program can be because it has a success rate of 100% in terms of witness protection. To bolster this fact is that the WITSEC has an 89% conviction rate because of cooperating witnesses within WITSEC.48 We would not want to measure the ICC’s performance to a program that is only decent or only has a success rate of 80% because that may create inaccurate measures of how successful the ICC’s methods are or can be. Ideally, we would want to measure the ICC’s performance against a program that has a 100% success rate.

However, measuring the WITSEC to the ICC could have numerous extrinsic and confounding factors that are unaccounted for, and thus may not be a reliable indicator. For example, how would the differences in cultures between the United States and Kenya be measured, what would be the different types and personalities of witnesses that would want to enter a witness protection program, and what about the access to resources to create an efficient witness protection program? Additionally, the WITSEC was created to combat primarily organized crime in the United States.49 However, the crimes within the ICC’s jurisdiction are crimes such as genocide, crimes against humanity, and war crimes.50 Criminals that commit genocide may be more willing to murder witnesses than an organized crime leader or vice versa. Thus, using the WITSEC as a performance indicator may have too many factors that are unaccounted for.

The main issue with this argument is that any measure or indicator will have factors that may be unaccounted for or confounding. Even specific quantitative measures can have extrinsic factors that may confuse the data. For instance, polls by Gallup measuring whether Hillary Clinton or Donald Trump would win the 2016 Presidential Election indicated that Hillary Clinton would win.51 Instead, because of extrinsic factors unforeseen by Gallup, Donald Trump won the Presidency.52 However, that does not mean we should stop using Gallup. There will be extrinsic factors when using the WITSEC as a performance indicator. Moreover, like any measurement, there could be extrinsic factors that may be unaccounted for. However, that does not mean that the WITSEC is an unreliable indicator. With enough critical oversight by the individuals using the WITSEC as an indicator, the extrinsic factors that may have been missed can be identified and further analyzed. Therefore, extrinsic and confounding factors from measuring the WITSEC to the ICC would not be more significant than any other type of measurement.

However, the next issue is how the factors identified can be analyzed. For instance, how would the differences in cultures between the United States and Kenya be measured? Would it be efficient to attach a value to certain factors and then quantify the result? Putting a value number on different cultures does not seem to be an effective way of measuring the ICC’s success with its witness protection and security. How would the value be created? How would one determine what the value would be? Another alternative would be to analyze the factors through a totality of the circumstances point of view. For instance, instead of putting a value number on different cultures, take the differences in the cultures into account with many other factors that may influence the measurement. For instance, if the WITSEC is used as a performance indicator, factors such as the amount of resources between the WITSEC and the ICC, whether witnesses are willing to relocate, and the type of danger the witnesses are in should all be taken into account. Only after all the identified factors are taken in account can the ICC’s success be measured.

The issue with using a totality of the circumstances approach is that it is more of a subjective rather than an objective standard. In other words, there is no hard quantitative data directly stating what the result is. Instead, the approach can be prone to human error. An alternative to the totality of the circumstances approach could be a bright-line standard. For instance, the WITSEC has a 100% success rate in its witness protection system.53 Thus, in terms of a bright-line standard, the ICC’s success of its witness protection methods could be measured by a 100% success rate. In other words, if the ICC does not have a 100% success rate in protecting its witnesses and does not lose a single witness, then the ICC’s methods would be deemed successful.

The bright-line standard, however, has its faults. The standard precludes many relevant factors that could be significant in determining the ICC’s success in witness protection. For example, the ICC investigates and prosecutes cases against presidents or leaders of entire countries.54 The president of an entire country would likely have more resources to make witnesses disappear than an organized crime leader.55 Moreover, sometimes there could be hundreds of witnesses brought by the ICC,56 thus making the ICC’s duty to protect its witnesses more difficult. With the bright-line standard, if one witness dies, that means the ICC’s witness protection methods are not successful. However, if the two factors just mentioned were accounted for by using the totality of circumstances approach, the ICC’s methods may be deemed successful because the ICC beat overwhelming obstacles and only lost one witness in the process. The ICC only lost one witness out of hundreds when leaders of entire countries were trying to eliminate the witnesses. With this approach, the two factors can be accounted for and can be used to measure the ICC’s success. Moreover, the totality of circumstances approach would be more accurate than a bright-line standard, which avoids the use of extrinsic factors that could have influenced the 100% success rate.

Another issue with the totality of circumstances approach is that it may be too subjective. In other words, the approach would be more prone to human errors. For example, assume that the ICC and the WITSEC methods both had 100% success rates.57 However, the ICC used 24-hour protection around the witness’s home, whereas the WITSEC used immediate relocation. Both methods seem to work because of the 100% success rate. However, a person analyzing these methods could lead to opposite results. Such circumstances influencing the person could be his personality, his background, and how he may be feeling that particular day. He may see the 24-hour protection as an effective approach because he may have had to move around numerous times when he was a child. Relocation would require the witnesses to move. Because the 24-hour protection does not require relocation, he may decide that as the successful method. Therefore, he may decide that the ICC’s witness protection methods are successful.

On the other hand, another person analyzing the same methods may come to the opposite result. For instance, if the person had her home burglarized multiple times, she may never feel safe inside that same home. Thus, from her viewpoint, even with 24-hour protection, the witnesses could still be in danger after the protection ends. However, with immediate relocation, the witnesses will never be found again by the hitmen that are trying to eliminate them. Thus, because of the person’s experience, she may be inclined to find that the ICC’s 24-hour protection may not be successful as compared to the WITSEC’s relocation method.

First, one person would not be analyzing the methods and factors between the WITSEC and the ICC. Idealistically, there would be a group of educated individuals that would analyze the factors and methods between the two. With more individuals involved in the analysis, the more likely the subjective factor can be curtailed. For instance, it probably is not likely that a group of 10 people will all have the same experiences. Thus, having a group of individuals analyze the methods would create a more accurate result than having one person analyze the data.

Second, any type of performance indicator used to measure the ICC’s success in its witness protection methods will have subjective factors. For instance, using European witness protection methods or creating a model witness protection program will still include subjective factors. This is in stark comparison to indicators used to measure other types of successes. For instance, the murder rate in the United States has declined since the 1990s.58 There can be no subjective factors involved in reaching the result that the murder rates have declined. That is because the result is based on an analysis of numbers. There can be no way to argue that the murder rate has not declined. However, as abovementioned, it is not effective to measure the ICC’s success through a bright-line standard or to give numerical values to various factors.59 There are many relevant extrinsic factors that need to be accounted for, which could only be done with a totality of circumstances approach. The best approach would be to curtail these subjective factors by using a group of individuals to analyze the methods.60

Finally, the last issue is that using the WITSEC as a performance indicator may be an incompatible and impractical standard for the ICC, which may create the illusion that the ICC’s methods are unsuccessful. For instance, the ICC does not have a police force61 and since the ICC is not its own country, there would be an issue as to what country the witness will be relocated to. On the other hand, the WITSEC has the United States Marshals as its police force62 and has locations within the United States to relocate the witnesses to.63 Without a police force and location, it may be significantly harder for the ICC compared to the WITSEC to relocate its witnesses. Therefore, using the WITSEC as a performance indicator may give off the illusion that the ICC methods are unsuccessful.

First, the fact that the ICC does not have its own police force or locations to relocate witnesses to can be factors as part of the entire totality of the circumstances analysis. Therefore, these factors will be included to determine whether the ICC’s methods are successful compared to the WITSEC’s methods. Therefore, the ICC’s methods will not always be deemed as unsuccessful because these factors will be taken into account.

Second, the purpose of having a performance indicator is to measure the success of the ICC’s witness protection methods. However, that is not the only purpose. The ultimate purpose is for the ICC to measure and thus identify the issues it has, and then to improve upon its current methods. For instance, if the measurement shows that the ICC’s methods are successful, it needs to continue enforcing the same methods. However, if the measurement shows that the ICC’s methods are unsuccessful, the ICC will need to improve and change its methods, and this is the ultimate goal. If the two obstacles abovementioned are blocking the ICC’s success to protect its witnesses, that would mean the ICC will need to fix its methods to beat the obstacles. Thus, having the WITSEC as a performance indicator is not only for measurement, but also is a model the ICC can use to see what changes are required to improve the ICC’s methods.

Using the WITSEC as a performance indicator to measure the ICC’s success in witness protection is optical, if not at least an excellent start. However, there are many extrinsic factors, subjective influences, and impractical standards that may render ineffective the use of the WITSEC as a performance indicator. However, many of these issues can ultimately be resolved and dealt with by using the totality of circumstances approach, using a group of individuals to do the analysis, and using various other solutions. These solutions can lead to more consistent and accurate results when using the WITSEC as a performance indicator. Therefore, using the WITSEC as a performance indicator can assist in identifying issues within the ICC’s witness protection methods, and this can further lead to better results for the ICC in the future.

III. Measuring the ICC’s Performance with the WITSEC as a Performance Indicator

By using the WITSEC as a performance indicator, the ICC’s success in its witness protection methods will be measured. The totality of circumstances approach will be used instead of a bright-line standard or a quantitative value approach.

The WITSEC has a 100% success rate in witness protection.64 Moreover, the WITSEC has a conviction rate of 89% because of testimony from the protected witnesses.65 The WITSEC’s success seems to stem from its relocation methods.66 If the hitmen cannot locate the witness because he cannot be located, how would the hitmen eliminate the witness? They cannot. Other protection methods such as 24-hour protection and bomb shelters could be just as effective. However, the issue is that after the trial is over the witness needs to continue living his life. He will eventually have to leave the bomb shelter to do ordinary tasks such as grocery shopping, going to work, and watching a movie in theatres. Moreover, there will most likely be psychological damages to the witness if he lives the rest of his life inside a bomb shelter.

Additionally, being under 24-hour protection can cause similar problems. The witness will eventually have to leave his home. Law enforcement cannot continuously protect the witness for the rest of his life. That would entail law enforcement to follow the witness around when he goes grocery shopping and when he goes to work. Law enforcement will also need to protect the witness’s family members for the rest of the family members’ lives. If 24-hour protection ends because of the witness’s death, the hitmen may eliminate the family members. If other potential witnesses hear of this news, they will unlikely be willing to testify for the ICC or the United States government because they now know that the 24-hour protection will stop after their death, and therefore their family members will be in danger. Therefore, law enforcement will need to continue the 24-hour protection for the witness and his family members, even if the witness eventually dies. This alternative will be costly and would not appeal to witnesses because they will need to be followed by law enforcement for the rest of their lives.

Because the witness will eventually need to live a normal life, relocation would be the ideal method of preventing witness interferences. The hitmen will be unable to find the witness. Moreover, when the trial is finished, the witness and his family members can continue living a normal life without help from the United States government or the ICC.

The ICC, on the other hand, has had some issues with witness interferences and deaths.67 In fact, these witness interferences and deaths have caused the ICC to lose its cases and trials against important country leaders that allegedly committed atrocious crimes.68 This may be because of the methods employed by the ICC.69 For instance, the ICC uses methods such as face and voice distortions, 24-hour protection, and education.70 However, relocation is only used as last resort and only when it is absolutely necessary.71 In fact, the relocation of witnesses may sometimes be only temporary.72 Relocation will always be a burden to the witness because he will need to live in an entirely new place he is unfamiliar with and with an entirely new identity. However, as abovementioned, relocation of witnesses may be the best method to protect witnesses from harm and intimidation. The burden on the witness may be worth the benefits obtained which would be the witness’s safety, the witness’s family’s safety, and convictions for the ICC.

In stark contrast, the WITSEC relocates the witness immediately upon acceptance into the WITSEC.73 The witness and his family members are moved to an entirely new area and are given new identities with authentic documentation.74 Furthermore, he is given a salaried job, job training, and may even be allowed to have plastic surgery to change his identity or to change his school grades.75 These relocation methods seem to be the reason why the WITSEC has a 100% success rate.76 However, the ICC has lost many witnesses through bribery, intimidation, or death.77 That seems to be because the ICC does not use the relocation method as often as it should.78 In fact, the International Bar Association recommended that there is a need to “increase capacity for witness relocation” and that witness relocation programs should receive more funding and resources.79 Therefore, since the ICC methods do not seem to be as effective as the WITSEC methods, an argument could be made that the ICC procedures to protect its witnesses are not successful.

However, there are many extrinsic factors that may make it seem as if the ICC is not as successful compared to the WITSEC. For example, the WITSEC has a police force, the United States Marshals, to enforce its witness protection program.80 The WITSEC has the power to create fake documents and new identities within the United States.81 Moreover, the types of crime the WITSEC is used for is primarily organized crime.82 Therefore, the number of witnesses may not be as numerous as the number of witnesses required to prosecute genocide or war crimes. Finally, the witnesses that are being relocated are being moved to a different part of the country.83 Because of the size of the United States, “relocating a witness half-way across the country greatly assists in ensuring witness anonymity. For smaller nations like Lithuania and Bosnia, relocating within that country may not guarantee that witness stays hidden for very long.”84 Moving a witness within his own country may be easier than moving a witness to an entirely different country. The size of the United States lessens the burden for the WITSEC to protect its witnesses, and allows the WITSEC to unilaterally enforce its methods. For instance, if the WITSEC had to move witnesses outside the United States, more obstacles would burden the witness protection process such as foreign citizenship, learning another language, and needing to work with another country’s government.

The extrinsic factors for the ICC are in stark contrast with the WITSEC’s factors. Unlike the WITSEC, the ICC does not have a police force.85 Thus, it may be harder for the ICC to enforce witness protection methods. Moreover, the ICC prosecutes and investigates crimes such as genocide, crimes against humanity, and war crimes.86 Naturally, more witnesses would be required to prove a war crimes case than an organized crime case. Therefore, the ICC may have a significantly higher burden than the WITSEC if the ICC wanted to relocate all of its witnesses. In fact, sometimes there could be hundreds of witnesses called by the ICC.87 Thus, significantly more resources would be required to relocate the ICC’s witnesses. Moreover, because the ICC is not its own country, cooperation from the various states parties will be required to relocate and move witnesses. The ICC cannot unilaterally make witness relocation decisions. Thus, cooperation with the various states parties will be required. The ICC could relocate its witnesses to The Hague, but that would be ineffective because The Hague is not large enough to safely protect the witnesses. This is in stark comparison with the WITSEC which has 3.7 million square miles within the United States to relocate its witnesses.88

In comparing these extrinsic factors between the ICC and the WITSEC, the ICC’s witness protection methods may not be as unsuccessful as it seemed. There are many factors blocking and creating significantly higher burdens on the ICC than the WITSEC. However, these extrinsic factors are not insolvable or impossible obstacles. The ICC can overcome these obstacles to potentially have the same success rate the WITSEC does. Improvement is important because the ICC has lost important trials against atrocious criminals because of witness interference.89 Moreover, protecting witnesses is important for future trials for the ICC. If witnesses know that testifying for the ICC may require risking their lives because of a lack of adequate protection, witnesses will be unwilling to testify for the ICC. That means the ICC will lose more trials not because of witness interference, but because of a lack of witness cooperation. Lastly, all of human life is scared. Losing even one human life because of a lack of security is undesirable. The ICC can improve upon its methods for witness protection to achieve justice not only for current trials, but for future trials, and for the sanctity of human life.

IV. Solutions

The primary solution for the ICC to improve upon its witness protection methods is to offer immediate and permanent relocation services for its witnesses. Relocation is the ideal witness protection method because those attempting to eliminate the witness will not be able to find him and because the witness will eventually have to lead a normal life. The issue with relocating witnesses is the expenditure of resources. The ICC may lack abundant resources to sufficiently relocate all of its witnesses. This is especially true because the ICC may sometimes have hundreds of witnesses it intends to call.90

One solution to the resources issue is to ask the states parties to contribute more resources for the ICC’s relocation program. In fact, the ICC previously stated that it “remains strongly committed to the safety, security and well-being of all witnesses and relies on cooperation from the states parties for the adequate protection of witnesses.”91 Having more resources can aid in the ICC’s relocation efforts by offering immediate extraction of its witnesses, temporary safe houses, and permanent homes. The issue would be whether the states parties are willing to contribute more resources for relocation. However, because a lack of adequate witness security prevented justice against certain war criminals,92 the states parties may be more willing to offer resources to the ICC for better witness protection methods.

Even if the states parties do not offer the ICC additional resources, the ICC should still ask for hands-on assistance from the states parties. This is especially true in the light of the fact that the ICC does not have a police force93 nor an adequate location to relocate its witnesses to.94 First, the ICC should ask for assistance from the states parties for their police force to assist the ICC in the relocation of witnesses. This solution will require less resources from the ICC because the ICC will not need to create its own police force or task force. An issue arises, however, when the ICC is investigating or prosecuting a president of a country. The president is likely to be in control of his own police force because he is the leader of that particular country. How would the ICC ask that country’s police force to relocate witnesses inside that country if the president will likely order the elimination of those same witnesses? The ICC could ask the other states parties to aid in relocation efforts of those witnesses. However, that would force a foreign police force entering into a different country’s land. That may create conflicts between various countries that the states parties may not want.

The ICC may create its own police force. However, that may require significant resources from the ICC. The ICC could also create its own task force whose only responsibility is to relocate witnesses instead of creating an entire police force. That alternative would be less expensive because less bodies would be required. However, what makes the relocation of witnesses more important than having a police force for executing arrests or search warrants? Thus, a slippery slope may be created and that may require the ICC to create its own police force, which would require considerable resources. The best solution for this issue may be for the ICC to ask for assistance not from states parties, but from Interpol or the United Nations Police. In that alternative, no conflicts between countries will be created and the ICC will not have to expend significant resources to create its own police force.

The ICC does not only need a police force to extract the witness, but also it needs a location to bring its witnesses to. The issue with the ICC is that it is not its own country. The ICC is located in The Hague, and The Hague may not be sizable enough to adequately protect witnesses.95 To safely relocate a witness, the witness should be relocated to a different country. That would require the cooperation of the states parties. There are two issues with this solution. First, there may be significant expenditure of resources by the states parties to assist witness relocations. For instance, the witness will need a salaried job, will need to learn a different language, and will need to learn about an entirely new culture. This solution, however, does not require only one of the states parties to assist in relocation. Each witness will be relocated to one of the 124 countries that are currently the states parties.96 Therefore, if all the states parties assume responsibility of witness relocation, the expenditure of resources may not be as significant compared to if only a couple of the states parties assist in relocation.

The second issue is if the witnesses being relocated has criminal histories. The states parties are probably unwilling to allow criminals into their countries. However, 95% of the WITSEC’s witnesses are in fact former criminals.97 However, despite their criminal backgrounds, the WITSEC’s witnesses no longer seem to be committing further crimes.98 Moreover, if a criminal is given a second chance to lead a new life with a salaried job, it seems unlikely he will want to risk his new life by committing another crime.

Finally, to save on resources for relocation, the ICC should only use essential witnesses for its trials. If the ICC only uses essential witnesses, there would be no need to call or offer hundreds of witnesses. Instead, the ICC can focus in securing and protecting the most important witnesses because they will be the only witnesses called for trial. This is a method the WITSEC uses. For example, the United States government was able to convict John Gotti despite three prior failures because Gotti’s underboss, Sammy Gravano, testified against Gotti.99 In exchange, Gravano entered the United States Witness Protection Program.100 Gravano was one essential witness required to convict Gotti. Similarly, the ICC can start to use “lieutenants and underbosses”101 as the only witnesses to convict war criminals.

However, the issue is whether only calling lieutenants and underbosses as witnesses will be sufficient to convict defendants on crimes such as genocide and war crimes. It may not. The ICC may need to call more witnesses than just the defendants’ lieutenants and underbosses. This is especially true because the lieutenants and underbosses of war criminals may be criminals themselves and thus may not be credible witnesses. Moreover, there is a chance that the lieutenants will lie and testify against the defendants to avoid prosecution and to start a new life after relocation. Only calling essential witnesses, however, will at least be a step in the right direction for saving relocation resources on only a few witnesses.

V. Conclusion

The WITSEC will be an accurate and consistent performance indicator to measure the ICC’s success in ensuring adequate security for its witnesses. However, using the WITSEC as a performance indicator has its host of issues. For instance, the WITSEC is not an objective or a quantitative type of measurement. Nevertheless, issues may arise if the WITSEC is used as an objective test or a bright-line standard. Moreover, using the WITSEC may contain extrinsic factors that may be unaccounted for. Using the totality of circumstances approach and using a group of individuals to analyze the data can resolve these issues.

Finally, by measuring the ICC’s witness protection methods to the WITSEC’s, the ICC may not be as successful in its methods as it could be. There are numerous extrinsic factors that may be preventing the ICC from being able to successfully protect its witnesses. These factors include the ICC’s lack of a police force, lack of an area to relocate its witnesses to, and a lack of resources. More importantly, these obstacles prevent the ICC from using the primary method used by the WITSEC, which is relocation. Nevertheless, the ICC can employ the relocation method with accuracy by asking for resources from the states parties, asking for hands-on assistance from the states parties, and by only using essential witnesses for its trials. With these solutions, the ICC will be able to have a witness protection system that will be exceeding more effective than its system now.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See, e.g., Emmanuel Igunza, Kenya ICC Witness Killing Haunts Eldoret Family, BBC News, Jan. 9, 2015, available online.

   (killing of a witness under the ICC’s witness protection program);

   ICC Prosecutors Accuse DR Congo Rebel of Witness Tampering, AFP, Nov. 11, 2016, [hereinafter DRC Tampering], available online.

   (showing evidence of witness tampering in the Congo);

   ICC Convicts DRC’s Former Vice President Bemba of Witness Tampering, DW, Oct. 19, 2016, [hereinafter Bemba Tampering], available online.

   (showing evidence of witness tampering in the Congo);

   Jonathan W. Rosen, Reporters, Witnesses Silenced ‘One by One’ with ICC Link Deadly in Kenya, Al Jazeera, Aug. 24, 2015, available online.

   (showing evidence of witness silencing in Kenya). ↩

2. 2.

   See Press Release, FIDH, Termination of Ruto and Sang Case at the ICC: Witness Tampering Means Impunity Prevails over Justice Again (May 4, 2016), [hereinafter Termination], available online.

   (“The systematic witness tampering and intimidation experienced in the Kenya cases has denied thousands of victims of the post-election violence the justice they rightfully deserve.”);

   Rosen, supra note 1.

   (“People connected to the international court proceedings against Kenyan leaders are turning up dead.”) ↩

3. 3.

   International Justice Monitor, Kenya Cases at the International Criminal Court, available online (last visited Jul. 3, 2017); Kenya’s ICC Trials, Amnesty Int’l (Sep. 16, 2013), available online. ↩

4. 4.

   International Justice Monitor, supra note 3. ↩

5. 5.

   Id. ↩

6. 6.

   See Human Rights Watch, ICC: Kenya Deputy President’s Case Ends (Apr. 5, 2016), available online; International Justice Monitor, supra note 3. ↩

7. 7.

   See Emma Batha, Kenya Urged to Help Women Raped During Post-Election Violence, Reuters, Feb. 15, 2016, available online; Human Rights Watch, supra note 6. There were devastating effects from the sexual violence such as the spread of HIV. See Batha, supra note 7; Lee D. Pyne-Mercier et al., The Consequences of Post-Election Violence on Antiretroviral HIV Therapy in Kenya, 23 AIDS Care 562 (2012), Taylor Francis paywall. ↩

8. 8.

   See Termination, supra note 2.

   (stating that interference of the ICC’s witnesses played a “significant role in the lack of sufficient evidence presented to support the charges against the accused” Ruto and Sang);

   ICC Drops Uhuru Kenyatta Charges for Kenya Ethic Violence, BBC News, Dec. 5, 2014, available online.

   (stating the ICC stated witnesses have been bribed and intimidated in the President Kenyatta case);

   Open Society Justice Initiative, Witness Interference in Cases Before the International Criminal Court (Nov. 2016), available online. ↩

9. 9.

   See Rosen, supra note 1. ↩

10. 10.

    See id. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    See Rosen, supra note 1. There seems to be some confusion as to whether Meshack Yebei was a prosecution or defense witness. See, e.g., Ken Wafula, Ruto ICC Witness: Murdered by the State?, Pambazuka News, Mar. 26, 2015, available online. ↩

14. 14.

    See Rosen, supra note 1. ↩

15. 15.

    Id. ↩

16. 16.

    Id. ↩

17. 17.

    Id. ↩

18. 18.

    Kenneth Roth, Africa Attacks the International Criminal Court, NYR (Feb. 6, 2014), available online. ↩

19. 19.

    See DRC Tampering, supra note 1. ↩

20. 20.

    See Bemba Tampering, supra note 1. ↩

21. 21.

    Bemba Tampering, supra note 1; DRC Tampering, supra note 1. ↩

22. 22.

    See Bemba Tampering, supra note 1; DRC Tampering, supra note 1; Wairagala Wakabi, Ntaganda Lawyers Seek Stay of Proceedings as Witness Tampering Case Looms, Int’l Just. Monitor (Nov. 14, 2016), available online. ↩

23. 23.

    Wakabi, supra note 22; DRC Tampering, supra note 1. ↩

24. 24.

    Bemba Tampering, supra note 1. ↩

25. 25.

    Bemba Tampering, supra note 1; Wakabi, supra note 22. ↩

26. 26.

    Bemba Tampering, supra note 1. ↩

27. 27.

    Witness Security Program, U.S. Marshals, [hereinafter Witness Program], available online (last visited Jul. 3, 2017). ↩

28. 28.

    Witness Program, supra note 27; see Gabriel Falcon, Inside the Witness Protection Program, CNN, Feb. 16, 2013, available online. ↩

29. 29.

    Falcon, supra note 28; Jonathan Yenkin, Witness to Murder: Out of Fear, Many Americans Choose to Keep Silent, AP, Jun. 13, 1993, available online; Robert Sabbag, Too Tough to Die: Down and Dangerous with the U.S. Marshals (1992); Tarik Abdel-Monem, Foreign Nationals in the United States Witness Security Program: A Remedy for Every Wrong?, 40 Am. Crim. L. Rev. 1235, 1242 (2003), available online. ↩

30. 30.

    Abdel-Monem, supra note 29. ↩

31. 31.

    See, e.g., Jake Rossen, 12 Secrets of the Witness Protection Program, Mental Floss (Mar. 29, 2016), available online; Kevin Bonsor, How Witness Protection Works, How Stuff Works, available online (last visited Jul. 3, 2017); Witness Program, supra note 27. ↩

32. 32.

    Bonsor, supra note 31; Witness Protection Program FAQ, In Plain Sight, NBC Universal, [hereinafter Witness FAQ], available online (last visited Jul. 3, 2017). ↩

33. 33.

    Bonsor, supra note 31. ↩

34. 34.

    Id.; Witness Program, supra note 27. ↩

35. 35.

    Rossen, supra note 31. ↩

36. 36.

    Witness Program, supra note 27; Witness FAQ, supra note 32. ↩

37. 37.

    Bonsor, supra note 31; Rossen, supra note 31. ↩

38. 38.

    Rossen, supra note 31. ↩

39. 39.

    Bonsor, supra note 31; Witness FAQ, supra note 32. ↩

40. 40.

    Is Enough Being Done to Protect ICC Witnesses?, Global Just. (May 18, 2015), [hereinafter Enough Being Done?], available online; Witnesses, ICC, [hereinafter Witnesses], available online (last visited Jul. 3, 2017). ↩

41. 41.

    Enough Being Done?, supra note 40; Witnesses, supra note 40. ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    Witnesses, supra note 40. ↩

45. 45.

    Id. ↩

46. 46.

    Enough Being Done?, supra note 40; Witnesses, supra note 40. ↩

47. 47.

    Abdel-Monem, supra note 29; Falcon, supra note 28; Sabbag, supra note 29; Yenkin, supra note 29. ↩

48. 48.

    Bonsor, supra note 31; Witness FAQ, supra note 32. ↩

49. 49.

    Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, available online; Raneta J. Lawson, Lying, Cheating and Stealing at Government Expense: Striking a Balance Between the Public Interest and the Interests of the Public in the Witness Protection Program, 24 Ariz. St. L.J. 1429, 1429 (1992), available online. ↩

50. 50.

    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], available online. ↩

51. 51.

    Frank Newport, Presidential Election 2016: Key Indicators, Gallup, available online (last visited Jul. 3, 2017). ↩

52. 52.

    Gregory Krieg, How Did Trump Win? Here Are 24 Theories, CNN, Nov. 10, 2016, available online; Maeve Reston & Stephen Collinson, How Donald Trump Won, CNN, Nov. 9, 2016, available online. ↩

53. 53.

    See all authorities, supra note 29 and accompanying text. ↩

54. 54.

    See, e.g., Al Bashir Case, ICC, available online (last visited Jul. 3, 2017); Bemba Case, ICC, available online (last visited Jul. 3, 2017); Gbagbo and Blé Goudé Case, ICC, available online (last visited Jul. 3, 2017); Kenyatta Case, ICC, available online (last visited Jul. 3, 2017). ↩

55. 55.

    One could argue that an organized crime leader could have more resources, especially if part of a large criminal syndicate. However, a president of a country would likely have the entire country’s army within his reach. ↩

56. 56.

    See Al Mariam, Kenyatta at the ICC: Is Justice Deferred, Justice Denied?, ICC Forum (Jan. 26, 2014), available online; Simon Allison, After a Bruising Year, the ICC Plots a Road to Redemption, Daily Maverick, Dec. 1, 2016, available online. ↩

57. 57.

    In this case we are not using the 100% success rate as a bright-line standard. Instead, the 100% success rate is being used as a factor in the totality of circumstances analysis. ↩

58. 58.

    Murder Rates Nationally and by State, DPIC, available online (last visited Jul. 3, 2017). ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    International Criminal Court, Understanding the International Criminal Court (Aug. 22, 2013), available online, archived; What Does the International Criminal Court Do?, BBC News, Jun. 25, 2015, available online. ↩

62. 62.

    Witness Program, supra note 27. ↩

63. 63.

    See Alex Mayyasi, What Happens When You Enter the Witness Protection Program?, Priceonomics, Aug. 4, 2014, available online; Colin Nissan, You Are Now Under Witness Protection, The New Yorker (Aug. 20, 2013), available online; Melissa, What Really Happens When Someone Enters the Witness Protection Program, Today I Found Out (Mar. 30, 2015), available online. ↩

64. 64.

    See all authorities, supra note 29 and accompanying text. ↩

65. 65.

    Bonsor, supra note 31; Witness FAQ, supra note 32. ↩

66. 66.

    See, e.g., id.; Rossen, supra note 31; Witness Program, supra note 27. ↩

67. 67.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩

68. 68.

    See, e.g., id. ↩

69. 69.

    See, e.g., supra note 40 and accompanying text. ↩

70. 70.

    See id. ↩

71. 71.

    Id. ↩

72. 72.

    Id. ↩

73. 73.

    See Bonsor, supra note 31. ↩

74. 74.

    Witness Program, supra note 27; Witness FAQ, supra note 32. ↩

75. 75.

    Bonsor, supra note 31; Rossen, supra note 31. ↩

76. 76.

    See all authorities, supra note 29 and accompanying text. ↩

77. 77.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩

78. 78.

    See, e.g., supra note 40 and accompanying text. ↩

79. 79.

    Al Mariam, Saving the ICC: A Proposal for a Witness Protection Program, ICC Forum (Apr. 6, 2014), available online. ↩

80. 80.

    See Witness Program, supra note 27. ↩

81. 81.

    See id.; Witness FAQ, supra note 32. ↩

82. 82.

    See, e.g., supra note 49 and accompanying text. ↩

83. 83.

    See U.S. Marshals, U.S. Marshals Service Talks WitSec to the World (Aug. 2006), available online. ↩

84. 84.

    Id. ↩

85. 85.

    See supra note 61 and accompanying text. ↩

86. 86.

    Rome Statute, supra note 50. ↩

87. 87.

    See supra note 56 and accompanying text. ↩

88. 88.

    United States of America, Nations Encyclo., available online (last visited Jul. 3, 2017). ↩

89. 89.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩

90. 90.

    See supra note 56 and accompanying text. ↩

91. 91.

    Kenya to Probe Death of Defense Witness in ICC Trial, Reuters, Jan. 7, 2015, available online. ↩

92. 92.

    See notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩

93. 93.

    See supra note 61 and accompanying text. ↩

94. 94.

    See id. at 11–12, 16–17. ↩

95. 95.

    See id. at 11–12, 16–17. ↩

96. 96.

    The States Parties to the Rome Statute, ICC, available online (last visited Jul. 3, 2017). ↩

97. 97.

    See Falcon, supra note 28. ↩

98. 98.

    See, e.g., Marcus Baram, Start Snitching: Inside the Witness Protection Program, ABC News, Oct. 26, 2007, available online. ↩

99. 99.

    See Mariam, supra note 79. ↩

100. 100.

     Id. ↩

101. 101.

     Id. ↩