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VICTIMANDWITNESSPROTECTIONATTHE INTERNATIONAL CRIMINAL COURT: THEROLEANDIMPORTANCEOFIN-COURTPROTECTIVEMEASURES

JESSIKA CASTAÑON DE OLIVEIRA

Thesis Supervisors: Prof. Guenael Mettraux and Prof. Lori Damrosch

International Criminal Law LLM

University of Amsterdam and Columbia University Joint Program

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INTRODUCTION 3

CHAPTER 1: VICTIMSANDWITNESSESATTHE ICC 6

The recognition of victims’ rights in criminal proceedings 6

Victims of international crimes 7

Victim participation at the ICC 8

The ICC duty to protect victims and witnesses 11

CHAPTER 2: BALANCING PROTECTIVE MEASURES 16

The principle of publicity 17

Rights of the accused 20

CHAPTER 3: VICTIMANDWITNESSPROTECTIONATTHE ICC 23

Protection outside the courtroom 24

In-court protective measures 26

Roster of procedural measures of protection 28

Judicial discretion 29

The principle of necessity 31

The principle of proportionality 33

Provisions for protective measures on the conduct of the proceedings 34

Factors that mitigate the presumption against the use of protective measures 36

CONCLUSION 39

BIBLIOGRAPHY 41

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INTRODUCTION

In November 2009, the International Criminal Court (hereinafter the “ICC” or “the Court”) published the Report of the Court on the Strategy in Relation to Victims, in which it recognized that “a key feature of the system established in the 1 Rome Statute is the recognition that the ICC has not only a punitive but also a restorative function”. To a great extent, the restorative purpose of the proceedings before the ICC is only possible due to the wide range of victims’ participatory rights recognized in the Court’s governing instruments, which allow that victims not only 2 provide evidence through testimonies but also take part in the proceedings in their own capacity, sharing their views and concerns in regard to the underlying facts and circumstances related to the crimes in question.

Additionally, the importance of the testimony provided by victims to the investigations and prosecutions conducted by international criminal tribunals like the ICC is significantly higher than the role of witness-based evidence in criminal trials at the domestic level, especially considering the difficulty of obtaining other types of evidence in the context of crimes such as genocide, crimes against humanity and war crimes. The macro-criminality context in which such crimes usually occur and the fact that law-enforcement structures are generally weakened in ongoing conflicts and in the immediate post-conflict context are two of the main factors which contribute to the enhanced relevancy of testimonies in international criminal proceedings.

ICC, Report of the Court on the strategy in relation to victims, para. 3

1

The Rome Statute of the ICC, adopted on 17 July 1998 and entered into force on 1 July 2002; the Rules

2

of Procedure and Evidence of the International Criminal Court (RPE), adopted on 9 September 2002; and the Regulations of the International Criminal Court, adopted by the judges of the Court on 26 May 2004

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Combined with the recognition of victims’ participatory rights, the essential role played by witnesses in international criminal trials has raised concern about the protection of both victims and witnesses in the realm of proceedings before the ICC. The reflection made by the Trial Chamber in the Katanga Case is noteworthy in this regard:

The Court's operations are mainly conducted in demanding conflict or post-conflict areas where the law-enforcement structures are generally weak or developing and the general security situation is often subject to sudden changes. Consequently, any operation carries an inevitable and inherent risk. The establishment and implementation of a comprehensive and appropriate system of witness protection therefore aims at addressing those challenges in the best possible manner. 3

Despite having the statutory duty to protect “a victim, a witness or another 4 person at risk on account of testimony given by a witness”, the effective guarantee of 5 the safety and well-being of victims and witness entails various difficulties. Whereas efforts to provide the necessary protection can take place both inside and outside the courtroom, each sort of protective measures have their own limitations and have not yet provided a definitive answer to the issue of protection.

On the one hand, it is important to note that the ICC operates under considerable financial and operational constraints, which limits the feasibility of 6 witness protection programmes based on the relocation of the persons concerned. Consequently, the ICC faces the challenge to provide effective protection to victims and witnesses, whilst operating without the support structures that domestic judicial bodies

ICC, Katanga Case, 12/06/2008, para. 6 [online]

3

Art. 68(1) of the Rome Statute

4

Rule 87(1) of the RPE

5

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 12

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have to provide for protection measures. As out-of-court protective measures do not seem to be the most adequate way to provide for such protection, they are best being left as a last resort, only be recurred to in extreme situations. 7

On the other hand, the Court is also under the obligation to guarantee a fair trial, which compromises, inter alia, the rights of the accused and the principle of publicity. This means that both of them are to be duly considered in any decision regarding the application of protective measures. Thus, the establishment of in-court protective measures is to be limited to the strictly necessary, in order not to undermine other values and commitments of the Court.

Therefore, the goal of the present work is to consider the Court’s practice regarding protective measures. More specifically, to what extent it effectively provides for protection without unduly restricting the rights of the accused and impairing the legitimate interest of both the local and the international communities in these proceedings.


ICC, Bemba Case, 18/08/2008, para. 8 [online]

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CHAPTER 1: VICTIMSANDWITNESSESATTHE ICC

The recognition of victims’ rights in criminal proceedings

Traditionally, criminal justice has tended to focus on crimes and offenders, leaving victims to fill secondary roles in criminal proceedings, if any role at all. This focus on the accused is largely attributable to the fact that the primary purpose of criminal trials is to investigate and prosecute individuals believed to be responsible for committing crimes and if found guilty to then punish those individuals. Consequently, 8 greater emphasis has been placed on the wrong that has taken place and on whether an individual should be found accountable and punished for such wrongdoing.

However, over the past half-century there has been a notable shift in regard to the relevance and participation of victims in transitional justice processes. This change is closely related to what became known as the victim’s right movement, in which researchers, policy-makers, those working with victims and victims themselves, all voiced their concern throughout the world over the apparent disregard of the victim in the criminal justice process. The victim’s right movement insisted that criminal 9 justice systems were to be reformed in order to better meet the needs and concerns of those directly affected by the commission of crimes and the consequent criminal processes.

As a consequence, the notion that victims should have greater rights within criminal justice systems surfaced, and a greater recognition of victims' rights is now

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 5

8

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 6

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observable, not only in domestic legal systems but also in the international sphere. 10 Whereas victims’ rights have gradually been recognized at the national level for the past half-century, victim participation at the international level is still a relatively new 11 phenomenon, which has posed many of the same questions that domestic jurisdictions faced, as well as new questions, unique to the international context. 12

Victims of international crimes

International criminal law and international criminal proceedings only deal with specific types of cases, namely the most serious crimes of concern to the international community. These crimes are closely associated with the idea of mass or collective victimization. According to Leyh, to a large extent, it is the mass 13 victimization aspect of these crimes that props them to the level of international crimes.

In this sense, in spite of the general perception of victims as individuals who were harmed by perpetrators as a result of the commission of a crime, the situation seems to be more complex in regard to international crimes, due to the macro-criminality context in which such crimes usually occur and the special gravity and seriousness of the violations in question. Thus, victims of international crimes carry an obvious collective aspect , which must be considered in the transitional justice 14 processes that are usually put in place crimes like genocide, war crimes and crimes against humanity occur. Considering criminal proceedings involving such crimes are

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 1

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LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 6

11

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 9

12

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 10

13

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 2

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closely related to transitional justice mechanisms, it is imperative that international criminal proceedings are not restricted to the punishment of the perpetrators. Instead, the victims' interests and perspectives must be addressed and structured in order to ensure the legitimacy of such proceedings, thus guaranteeing that the transitional justice process as a whole fulfils its goals.

In answering the call for great rights of protection, participation, and reparation especially in the transitional justice context, international criminal tribunals increasingly broadened their mandates in an attempt to better address the need and concerns of victims. As such, the courts created after the ad hoc tribunals — namely the International Criminal Court (ICC), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Panels for Serious Crimes in East Timor (SPSC), and the Special Tribunal for Lebanon (STL) —, provide for increased recognition of rights for victims. Thus, these courts have taken on additional tasks pertaining to victims’ service-related and procedural rights. In addition to the now recognized right to claim 15 reparations, the right to participate is a significant departure from previous international practice. 16

Victim participation at the ICC

In the evolving universality of victims' rights in criminal trials, the ICC became the first international criminal tribunal to endorse active victim participation in its proceedings by granting victims real participatory rights. Most notably, it allows victims whose personal interests are affected to present their views and concerns at

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 8

15

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 225

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appropriate stages of the proceedings. According to Sluiter, this change in approach is 17 primarily due to the criticism directed at the ad hoc Tribunals, where the experience has been that the prosecutor’s interest did not always coincide with those of the victims. In this sense, the ICC foresees a new and progressive victim participation scheme, which brings international criminal proceedings closer to those who have suffered as a result of the crimes, by recognizing the right to participate as an elementary right of the victim.

The Court’s governing documents allow for three different ways of participation. Besides being able to appear as a witness, victims may also submit a 18 communication to the Court complaining about an offense and take part as a victim 19 participant in the proceedings. This means that the ICC award victims the right to participate in Court proceedings in their own capacity, meaning other than as witnesses called by the actors involved in the trial, as long their participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 20

In contrast with the victim-participants, victim-witness do not share their views and concerns, but give evidence instead, usually by answering questions posed . 21 Furthermore, whereas victim-participants voluntarily present themselves and request to be considered as such by the Court, victim-witnesses may be asked to testify by the

SLUITER, International criminal procedure: principles and rules (2013), p. 1300

17

The Rome Statute provides for three explicit instances with regard to direct participation of victims in

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the criminal proceedings. First, pursuant to Art. 15(3), victims may make representation to the PTC when the prosecutor requests the authorization of an investigation from the PTC. Second, pursuant to Art. 19(3), victims may submit observations to the Court when a challenge to the jurisdiction of the Court or the admissibility of a case arises. Finally, pursuant to Art. 68(3), victims may express their views and concerns in other proceedings so long as their participation does not infringe upon the rights of the accused and a fair trial.

Art. 15 of the Rome Statute.

19

SLUITER, International criminal procedure: principles and rules (2013), p. 1350

20

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 238

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prosecution, the defense or the relevant Chamber. Despite being distinct roles, victims may hold the dual status of both a victim-participant and a victim-witness at the ICC. 22

Despite the importance of victim participation to the effectiveness and legitimacy of transitional efforts in general, it is important to note that the very feasibility of international trials greatly relies upon the participation of victims, especially regarding their capacity to provide evidence. According to the International Bar Association (IBA), witness testimony constitutes the primary form of evidence before the ICC . The fact that in most cases the State is either unable or willing to 23 effectively investigate ongoing violations is only aggravated by the time-gap that is usually observed between the commission of crimes and the activation of the competent tribunal. Additionally, due to the massive and widespread nature of the core crimes under international law makes, it is especially challenging for outside institutions to contribute to evidence-gathering. Hence the limited the availability, or even reliability, of physical evidence in international trials, that ultimately makes the testimony of witnesses a cornerstone in this sort of criminal proceedings, as highlighted by Safferling. 24

Aside from the victims’ participatory rights having been broadly recognized, it is in the best interest of international criminal justice that victims actually do participate in the proceedings, especially by testifying against their wrongdoers. However, victims and witnesses appearing before international tribunals are inherently at risk, due to the gravity of the crimes which they had to endure and the fact that

See ICC, Lubanga Case, 18 January 2008, para. 133-135; ICC, Katanga Case, 23 June 2008, para.

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18-19; ICC, Katanga Case, 22 January 2010, para. 110 IBA, Evidence Matters in ICC Trials (2016), p. 5

23

SAFFERLING, International Criminal Procedure (2012), p. 515

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perpetrators often continue to hold a significant degree of power and influence in the victims’ communities. Whereas victims and witnesses usually continue to live or work in the area of an ongoing armed conflict, they are continuously exposed to the risk of violence from both sides of the opposing parties. According to the ICC Registry, “it is assumed that all persons who are known to have contacts with the ICC face a certain degree of risk”. 25

In this sense, as Safferling pointed out, victims and witnesses of international crimes are at risk of retaliatory measures, and at the risk of being re-traumatized if they decide to take part in criminal proceedings. Therefore, to ensure 26 that victims are not only willing but able to come before the court, without fearing for their own integrity and the integrity of their beloved ones, it is imperative that tribunals provide protective measures aimed at ensuring the safety and well-being of victims and witness. Ultimately, the participation of victims and witnesses can be perceived to be conditioned to the existence and effectiveness of protective measures during the criminal proceeding.

The ICC duty to protect victims and witnesses

Inasmuch as international tribunals depend on the participation of victims to conduct trials and bring perpetrators to justice, it is in the tribunals’ best interest to guarantee, to the fullest extent possible, the safety and well-being of those willing to testify against the persons being investigated or accused by the court. Besides facilitating both ongoing and future prosecutions, as they add to the Court’s reliability

ICC Registry, Summary Report on the Round Table on the Protection of Victims and Witnesses

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Appearing Before the International Criminal Court (2009), p 5. SAFFERLING, International Criminal Procedure (2012), p. 516

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and credibility, the protection of victims and witnesses directly supports the goals of international criminal justice. First, they contribute to the establishment of the truth and a historical record, as they aim to ensure that all persons who have relevant information about the factual events can testify if they want to do so, without fearing retaliation. 27 Secondly, protective measures are in line with the goal of doing justice for victims, to the extent that they aim to prevent the further unnecessary suffering of victims. 28

Due to the importance of protecting both victim-participants and witnesses, the Rome Statute foresees certain protections. Article 68 of the Rome Statute is the primary source for the Court's responsibilities regarding the protection of victims and witnesses, especially during the investigation and prosecution stages of the proceedings. The first paragraph charges the Court as a whole with the task of protecting the safety, physical and psychological well-being, dignity and privacy of both victims and witnesses that come before the Court, as the “protection of witnesses is not the sole responsibility of a particular organ or a particular unit, but it requires a unified and coherent approach of the whole Court”. In this sense, the Trial Chamber in the 29 Lubanga Case has affirmed that:

36. The Chamber notes that the obligation to identify, protect and respect the well-being and dignity of witnesses rests significantly with the party or participant calling the witness, but the other party and the participants, as well as the Court, have responsibilities in this regard. The Chamber encourages all the organs of the Court and those involved with the trial, and particularly the Victims and Witnesses Unit, to raise with the Chamber, at an early stage, any specific concerns they may have regarding the integrity and well-being of a witness, and especially with those who may be traumatised or vulnerable. 30

SLUITER, International criminal procedure: principles and rules (2013), p. 855

27

SLUITER, International criminal procedure: principles and rules (2013), p. 855

28

ICC, Katanga Case, 12/06/2008, para. 7 [online]

29

ICC, Lubanga Case, 29/01/2008, para. 36 [online]

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In assessing the type of protections, the Court is to take into account all "relevant factors”, including age, gender, health of the victims and witnesses and the nature of the crime in which the victims and witnesses are involved. Additionally, the Rome Statute draws special attention to issuing protections in regard to crimes involving sexual or gender violence or violence against children, considered especially vulnerability of such victims and the greater risk of re-victimization related to it. 31

The secondary source of victims and witness protection can be found in Article 43 of the Rome Statute, which provides for the creation of the Victims and Witnesses Unit (VWU), an independent body within the ICC structure that falls under the purview of the Registry. The Unit is to render services in consultation with the Office of the Prosecutor, and for that, it must be equipped with the necessary expertise. The functions and responsibilities of the Unit, in large part, are to assess and 32 provide protective and support services to victims and witnesses. It is worth noting that the Unit is tasked with planning both long-term and short-term plans for protection and is the advocate of protective services before the Court. By determining the 33 establishment of the VWU, the Court attempted to minimize the risks these individuals take when contributing to the process, by affording them security and protective measures, in addition to support them with various psychological and medical services.

It is important to note that there is no obligation to consult the VWU, either by the requesting party or the chamber in considering such request. According to the Appeals Chamber in the Lubanga Case, it would be overly formalistic to impose the

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 57

31

Rule 19 of the RPE

32

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 58

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mandatory prior consultation Unit. It may, however, be useful to do so before making a formal request for non-disclosure to the relevant chamber. 34

In this sense, the Court may, after consultation with the Victims and Witnesses Unit, issue protective measures for victims, witnesses, or "another person at risk on account of testimony given by a witness” . The recommendation and 35 implementation of specific protection measures will depend on the Unit’s assessment of the circumstances of the case and the reasons why the particular witness or victim is to be sheltered. Additionally, the Unit shall draw any matter to the attention of a chamber 36 where it considers that protective measures require examination in a specific situation. 37

Thirdly, in addition to the general protection duty imposed on the Court as a whole, and the assignment of a special Unit to expertly assess the necessity and 38 applicability of protective measures in concrete circumstances, the Rome Statute and the RPE also assign specific responsibilities to the Chambers , the Prosecutor and the 39 40 Registrar in relation to protective measures. 41

It is important to bear in mind that not only the witnesses of the prosecution are endangered due to their testimony, but defence witnesses also face the same risks. Therefore, as Safferling highlights, the Victims and Witnesses Unit is part of a neutral organ, so it does not assume that the accused poses a threat to the Prosecution

ICC, Lubanga Case, 13/10/2006, para. 40 [online]

34

Rule 87(1) of the RPE

35

SAFFERLING, International Criminal Procedure (2012), p. 515

36

Regulation 41 of the Regulations of the Court

37

Art. 68 of the Rome Statute

38

Art. 57(3)(c), 64(2) and 64(6) of the Rome Statute; and Rule 86 of the RPE

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Art. 54(3)(f) and 68(1) of the Rome Statute

40

Art. 43(6) and 68(4) of the Rome Statute; and Rule 17(2) of the RPE

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witnesses. Either the Office of the Prosecutor or defense counsel can make a motion 42 for a protective order and the Court.

Having established Court’s duty to protect victims and witnesses, I shall now analyze to what extent the Court can protect them without violating its own principles and the rights of the accused, thus not only safeguarding the victims’ rights but also guaranteeing a fair trial.

SAFFERLING, International Criminal Procedure (2012), p. 516

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CHAPTER 2: BALANCINGPROTECTIVEMEASURES

As aforementioned, the Court’s ability to provide adequate protection to witnesses is crucial to its own credibility. Additionally, the ICC has a statutory responsibility to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses” . Thus, the 43 competent chamber may, as necessary prior to or during the trial, implement such measures as are necessary to provide for the protection of the accused, witnesses and victims. However, protective measures implemented by the Chamber have the potential to adversely affect the fairness of the trial.

In the realm of international criminal proceedings, there are those who believe that the right to a fair trial concerns only the accused, as only him or her would be statutorily entitled to it. In this regard, Von Wistinghausen argued that only the 44 accused has the right to a fair trial, once he or she is the one who can be held responsible for the alleged crimes and who stands liable to conviction and incarceration. The author further stated that “it is [the accused’s] trial and nobody else’s”. Nonetheless, I shall respectfully disagree.

In various opportunities, the ICC governing instruments mention “the 45 rights of the accused and a fair and impartial trial”, in a clear indication that even though these factors are related, the Court’s commitment to a fair trial is not restricted or limited to its duty to respect the rights of the accused. Instead, to properly satisfy the

Art. 68 of the Rome Statute

43

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 171

44

Art. 68(1), 68(3), and 68(5) of the Rome Statute, and Rules 20(1), 91(3)(b), 101(1) of the RPE

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universally recognized and statutorily established obligation to a fair trial, the rights 46 47 of both the accused and the victims must be given consideration to during the investigatory and trial phases, to the extent that they have been well established in international law and expressly recognized by the Court.

In this sense, to truly provide a fair trial and due process in the following of international crimes, the ICC and other international and hybrid tribunals must find a way to balance the rights of the accused, the rights of the victims and the principles that govern the Court itself. Additionally, the proceedings must give due consideration to the interests of the international community as a whole, once international crimes threaten the peace, security, and well-being of the entire world. 48

The principle of publicity

In principle, trials at the ICC must be open to the public. According to Sluiter, the requirement of public trial has two facets. First, the right of an accused to a 49 public trial is meant to prevent abuses of power by authorities, by impeding that the process takes place away from public scrutiny. Secondly, this right is compounded by a general interest of the both the local and the international community to see justice done. The idea that there is a general interest in public trials is supported by the fact that the accused cannot waive his or her right to a public trial, thus being subject to the same

The leading international human rights instruments which explicitly provide for a fair trial include,

46

inter alia, art. 10 and 11 of the Universal Declaration of Human Rights (1946); art. 9, 14 and 15 of the International Covenant on Civil and Political Rights (1966); art. 5, 6 and 7 of the European Convention on Human Rights (1950); art. 7, 8 and 9 of the American Convention on Human Rights (1969); and art. 3, 6 and 7 of the African Convention on Human Rights (1981)

Art. 64(2) of the Rome Statute

47

Preamble of the Rome Statute

48

SLUITER, International criminal procedure: principles and rules (2013), p. 855

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strict criteria as required for the prosecution when requesting a closed session. In other words, “the right to a public trial within international criminal proceedings is also vested in the international community, although it has no voice of its own to be heard in international trials”. As affirmed by the Trial Chamber in the Katanga Case, the public 50 character of the proceedings is considered fundamental.

Despite being fundamental, the principle of publicity is not absolute. The decision by Judge Bertram Schmitt on the Ongwen Case well illustrates such understanding:

The publicity of proceedings is a fundamental right of the accused and a necessary component of a fair and transparent trial. At the same time, this general principle is not absolute and is subject to certain exceptions, one of which is indeed the protection of victims and witnesses. 51

Therefore, even though public hearings are the rule, the Court may mitigate the principle by making procedural exceptions to protect victims and witnesses. In this sense, Article 68 of the Rome Statute leaves it to the discretion of the Court to decide whether and how these procedural exceptions may be used, taking into consideration all relevant circumstances. It is important to note that the establishment of procedural measures that restrict the publicity of trials to protect victims and witnesses must be balanced by the Court in such a way that will not unfairly prejudice the rights of the accused. In the Lubanga Case, whereas the Trial Chamber recognized “the 52 53 importance of truly open justice”, it also underlined that the Court sometimes has to make exceptions to the principle of public hearings due to protective needs of witnesses.

ICC, Katanga Case, 02 December 2009, para. 4; ICC, Bemba Case, 42 December 2010 [online]

50

ICC, Ongwen Case, 29/11/2016, para. 5 [online]

51

BONACKER & SAFFERLING, Victims of international crimes (2013), p. 57

52

ICC, Lubanga Case, 12/01/2009, p. 3-4 [online]

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In spite of the ICC duly considering the public character of the proceedings as the default option, the fact that certain protective measures are granted quite routinely signals that the exceptionality of protective measures is not understood as binding from a numerical or statical point of view. The non-disclosure of the identity of a witness to the public and media, for instance, is a frequently applied protective measure in international criminal procedure. Instead, it means that protective measures should be justified by exceptional circumstances, even if such circumstances are particularly common when it comes to ongoing conflicts or the post-conflict environments. In this 54 sense, the ICC Appeals Chamber stated that:

The reference in the decision by the Pre-Trial Chamber to the exceptionality of non-disclosure of the names of witnesses or of portions of prior witness statements should not be understood as implying that necessarily, only a very small number of witness identities will not be disclosed to the person in respect of whom a confirmation hearing is held; whether a request for nondisclosure will be successful will depend on the Pre-Trial Chamber's case-by-case evaluation. 55

However, it is important to note that restrictions to the principle of publicity may only continue to exist while the reasons that justify such exception also perdure. Judge Pikis well illustrated the need to revise orders of non-disclosure of information:

Rule 137 (2) of the Rules gives procedural expression to the duty of a Chamber to ensure the openness of the judicial process. The duty arises when the reasons for non-disclosure disappear. The word "may" does no more than reproduce the power of a Chamber to see that the judicial process is opened to the public. "May" in this context does not import discretion but gives expression to the obligation to do what is required by law. Asking the question whether in the absence of reasons justifying the continued withholding of the publication of proceedings the court has discretion to leave the seal intact, brings to the fore the mandatory nature of the power to make the proceedings public. Not to act would be a derogation from the duty

SLUITER, International criminal procedure: principles and rules (2013), p. 833

54

ICC, Lubanga Case, 13/10/2006, para. 36 [online]

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to administer justice openly. The non-disclosure of oral and documentary evidence adduced before a Chamber would hide from view the judicial process in the absence of any reasons that could validate such a course. In those circumstances the departure from the norm of a public hearing can find no justification. 56

Rights of the accused

Whilst it is extremely important to adequately provide for the protection of victims and witnesses, the Court’s duty to provide a fair trial dictates that protective measures can only be granted where it is sufficiently demonstrated that the measures sought in the specific circumstance of each witness in the case meet the standards set out in the Statute and Rules of the Court, and expanded in its jurisprudence.

Notably, the rights of the accused are among the most relevant standards and rules to be considered when considering the establishment of protective measures in the realm of proceedings before the ICC.

Even though the Rome Statute defines some of the rights of the accused, 57 as stated by Jackson, “human rights have provided the bedrock for achieving a 58 common procedure for the international criminal tribunals”. Therefore, there is a collection of international and regional human rights agreements of particular importance in complementing what constitutes the rights of the accused for the ICC.

On the authority of Leyh, the rights of the accused include beyond those 59 statutorily established, but are not limited to the right to be judged by and independent and impartial tribunal; the right to an expeditious trial; the right to a public hearing; the

ICC, Katanga Case, 4 February 2008, Separate opinion of Judge Georghios M. Pikis, para. 4

56

Art. 67 of the Rome Statute

57

JACKSON, Faces of Transitional Justice (2008), p. 236

58

LEYH, Procedural justice? Victim participation in international criminal proceedings (2011), p. 13

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right to not be subjected to arbitrary arrest and detention; the right to be informed of the nature and cause of the criminal charges; the right to human conditions during detention; the right not to incriminate oneself; the right not to be subjected to any form of coercion; the right to an interpreter; the right to remain in silence; the right to legal assistance; the right to disclosure of information; the right to have adequate time and facilities to prepare a defence; the right to be present at trial; the right to confront witnesses and obtain their attendance; the right to a reasoned judgment; and the right to appeal. In addition to the previously mentioned rights, the principle of presumption of innocence and of equality of arms is often invoked in regard to the rights of the accused, as well as limitations on double jeopardy and the prohibition on retroactive application of criminal laws.

The balance dictates clearly in favour of an accused's right to know the identity of witnesses which the prosecution intends to rely upon, particularly in light of the accused's right with regard to the preparation of their defence. Therefore, when 60 considering protective measures, the competent chamber shall be mindful of the need to guarantee the utmost protection and respect for the rights of the victims and witnesses, while ensuring the respect of the rights of the accused to a fair and public hearing, and seeking to balance those rights with the competing interests of the public in the administration of justice. This means that measures for privacy and security of 61 witnesses and victims must be consistent with the rights of the accused.

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 345

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TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 346

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Considering the amount of rights which must be contemplated when considering protective measures and the particularities of each situation, tribunals have found it impossible — or at least impracticable — to institute a precise and fixed standard according to which the granting of protective measures may restrict the rights of the accused in the practical circumstances of each case. Despite the existence of several provisions related not only to the Court’s duty to protect victims and 62 witnesses, but also to the maintenance of a balance between the rights of the later, the right of the accused and the principle of publicity, it has been established that an objective case-by-case approach must be used to determine whether, and if so which, protection measures may be imposed. For that reason, I shall now analyze the Court’s 63 practise regarding protective measures up to this date.


Rules 69, 75 and 79 of the RPE

62

SLUITER, International criminal procedure: principles and rules (2013), p. 833

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CHAPTER 3: VICTIMANDWITNESSPROTECTIONATTHE ICC

As earlier mentioned, the ICC is under a general duty to ensure the “safety, physical and psychological well-being, dignity and privacy” of victims and witnesses. 64 To maximize the protection system, the governing instruments of the Court assign specific responsibilities regarding the protection of victims and witness to the different organs of the Court. Furthermore, the existence of unit whose main purpose is providing expertise to the organs of the Court serves as a clear indication of the Court’s true commitment to the protection of victims and witnesses.

Protection measures are based on the management of the risk by limiting the exposure of victims and witnesses to the impending threats. In principle, it can be 65 warranted in two scenarios: either inside or outside the courtroom. The latter, compromised by witness protection programmes, are defined in as “formally established convert programme[s] subject to strict admission criteria that provides for the relocation and change of identity”. By contrast, the protection that takes place inside the 66 courtroom consists of the procedural protective measures to be adopted by chambers. 67 While this sort of protective measures commonly takes the form of limiting access to information, they may pursue different rationales. Besides preventing harm to witnesses or their relatives, protective measures may also be granted to provide state security interests by non-disclosure of the relevant information to the public. 68

Art. 68(1) of the Rome Statute

64

ICC, Bemba Case, 18/08/2008, para. 4 [online]

65

See UNODC, Good Practices for the Protection of Witnesses in Criminal Proceedings involving

66

Organized Crimes, 2008.

Regulation 94 of the Regulations of the Registry

67

SLUITER, International criminal procedure: principles and rules (2013), p. 819

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It is worth noting that the two types of protective measures are not, by any means, mutually exclusive. The participation in the protection programme does not negate the need to protect a witness's identity towards the public, as participants in such programme, although removed and protected from any immediate threat, remain vulnerable to exposure if information relating to their identity, location or the modalities of their protection are rendered public. Thus, procedural in-court measures granted by 69 a Chamber will have to be applied in a coherent and complementing manner. 70

Protection outside the courtroom

The Regulations of the Registry provide that the Registry shall develop a 71 protection programme — known as the International Criminal Court Protection Program (ICCPP) — for witnesses and victims of both sides of the trial, that is, for the prosecutor as well as for the defence team. This programme includes, interalia, the resettlement and the change of identity of the person concerned and his or her close relatives.

It is essential to note that the inclusion of victims, witnesses and their relatives in protection programmes is an extreme form of protection. The ICC has stated that the entry to the ICCPP and subsequent relocation or resettlement of the witness and his or her close relations away from the source of the threat is a protective measure of last resort. In this sense:

ICC, Bemba Case, 18/08/2008, para. 16 [online]

69

ICC, Bemba Case, 18/08/2008, para. 10 [online]

70

Regulation 96 of the Regulations of the Registry

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Participation in the ICCPP should always be a measure of last resort as it significantly impacts and disrupts the life of the individual, not least due to the dramatic impact of being uprooted from his or her normal surroundings and family ties and cut off from social contacts and networks. 72

According to the Pretrial Chamber in the Bemba Case, one must have a 73 realistic picture of the limitations of the protective measures available to the Court under this modality of protection. Most of these limitations arise from the fact that the Court does not have the support structures which the domestic judicial bodies have to provide for these protection measures.

For that, whereas the implementation of witness protection programs already faces challenges at the domestic level, it is important to consider that the costs — both on the Court and on the victim and witnesses and their relatives — are intensified at the international level. First, because relocation usually entails moving the victim or witness and their relatives to another country, making them endure a significant change in culture, language and environment. Second, because extensive negotiations with third States, conducted by the administrative pillar of the Court, 74 must take place. Not only the Court will need to spend a significant portion of its political capital on assuring the viability of such programmes, their effectiveness will be permanently dependent on the cooperation of States, which are under no legal obligation to provide for this sort of programme.

ICC, Bemba Case, 18/08/2008, para. 8 [online]

72

ICC, Bemba Case, 18/08/2008, para. 11 [online]

73

SLUITER, International criminal procedure: principles and rules (2013), p. 835

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Despite the fact that this sort of protective measures does not infringe the rights of the accused, as it enables the disclosure of their names, allowing the defence to properly prepare its case, the financial costs of this sort of initiative combined with the 75 impact it has on the person to be protected and his or her family, turns it into a not optimal solution. Likewise, the difficulties and challenges inherent to out-of-court protective measures cannot be addressed judicially and ultimately are dependent on third States — through financial contributions and cooperation regarding protection programmes — instead of the Court itself. So for the purposes of the present work, protective measures that are implemented outside the courtroom will not be considered.

In-court protective measures

As aforementioned, the prosecutor, the defence team and the legal representatives can request the application of especial procedural measures within the realm of the proceedings to ensure the safety and well-being of victims and witnesses. Moreover, the chamber can make exceptions to the procedural rules ex officio if it considers that such measures are imperative to the integrity of victims, witnesses or their relatives. However, guaranteeing the effective protection of victims and witness, 76 in addition to ensuring the necessary balance of such measures with the rights of the accused and the principle of publicity has been a considerably challenging task.

In 2009, the International Bar Association noted that “the participation rights of victims, while a significant achievement of the Rome Statute, are difficult to implement in practise”.77On April 2013, in addressing the situation in Kenya, the ICC

SAFFERLING, International Criminal Procedure (2012), p. 517

75

Rule 87(1) of the RPE

76

IBA, First Challenges: an Examination of recent landmark developments at the ICC (2009), p. 5

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Office of the Prosecutor reaffirmed that “witness protection remains one of our highest priorities”. In that same month, the departing Registrar, Ms. Silvana Arbia, 78 in summarizing her work described the protection of witnesses as “a sensitive issue and arguably the most important function of the Registry”.79These three statements illustrate how protective measures have become an essential issue in the practice of the ICC, especially considering that most evidence presented during proceedings so far has been witness-based. The statements also indicate how sensitive the issue of protective measures tends to be, as the ICC conducts investigations and prosecutes perpetrators in the context of ongoing conflicts or immediate post-conflict, which only increases the demands on the Court’s limited protection capacities. 80

Despite the complexity of such task and the numerous limitations of the Court in this regard, the ICC’s commitment to the protection of victims and witness is noteworthy. Eleven years since the handing down of its first major decision on victim participation , the Court’s jurisprudence on in-court protective measures is mounting. 81 After analyzing the ICC case law in this regard, it is possible to distinguish patterns in the Court’s practice. Thus, in the following sections of the present work, I will identify key concepts and principles that are recurrently invoked to justify whether procedural exceptions will be made and the extent of such measures.

Statement by the OTP, 5 April 2013 [online via https://www.icc-cpi.int/iccdocs/PIDS/wu/

78

ED167_ENG.pdf]

ARBIA, Registrar’s Legacy: reflections on the work of the Registry of the ICC 2008-2013 (2013), p. 4

79

STAHN, The Law and Practice of the International Criminal Court (2014), p. 1104

80

ICC, Situation in the Democratic Republic of Congo, 17/01/2006 [online]

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Roster of procedural measures of protection

The Rules of Procedure and Evidence and the Regulations of the 82 Registry enumerate a roster of protective measures which can be ordered by the Court 83 to ensure the safety and well-being of victims, witnesses or another person at risk on account of testimony given by a witness. Such measures can be put in place to prevent the release of information regarding the identity of location of the concerned person to the public, press and information agencies. 84

They are: the use of a pseudonym by the instead of the person’s real name; 85 the expunction of information from the public records of the Chamber; the prohibition 86 of disclosure of such information to a third party from the Prosecutor, the defence or any other participant in the proceedings; the presentation of testimony by electronic 87 means, including the alteration of image or voice, the conduction of part of the 88 89 proceedings in camera; the use of private sessions, in which the hearing is not open to 90 the public and there is no audiovisual stream broadcast outside the Court; and the use 91

Rule 87(3) of the RPE

82

Regulation 94 of the Regulations of the Registry

83

Rule 87(3) of the RPE

84

Rule 87(3)(d) of the RPE and Regulation 94(a) of the Regulations of the Registry

85

Rule 87(3)(a) of the RPE and Regulation 94(g) of the Regulations of the Registry

86

Rule 87(3)(b) of the RPE

87

Rule 87(3)(c) of the RPE and Regulation 94(b) of the Regulations of the Registry

88

Rule 87(3)(c) of the RPE and Regulation 94(c) of the Regulations of the Registry

89

Rule 87(3)(e) of the RPE and Regulation 94(f) of the Regulations of the Registry

90

Regulation 94(d) of the Regulations of the Registry

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of closed sessions, in which the hearing is held in camera. As the roster in not 92 exhaustive, as the Court may order any measure “which is technically feasible”. 93

Judicial discretion

Pursuant to Rule 87(1) of the RPE, a chamber may order measures to “protect a victim, a witness or another person at risk on account of testimony given by a witness” upon a motion from either the prosecutor or the defence, upon the request of the legal representative of a victim, or even on its own motion. Even though the chamber may consult the Victims and Witnesses Unit as it sees appropriate, the establishment of procedural measures of protection ultimately depends on the chamber’s assessment of the situation, which takes into account all relevant factors to appraise the party request on a case-by-case basis. In this sense, the Trial Chamber in 94 the Katanga Case ruled that:

The Chamber accepts the submissions of the parties that the presumption is that witnesses will give evidence by way of live in-court testimony, in accordance with Article 69(2) of the Statute. However, the Chamber will authorise the use of audio or video-link whenever necessary (see particularly Article 68 of the Statute), having ensured "that the venue chosen for the conduct of the audio or video-link testimony is conducive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness" (Rules 67(3)). This will be dealt with on a case-by-case basis, taking into account the views and concerns of the witness, the parties and, where relevant, the participants. 95

Regulation 94(e) of the Regulations of the Registry

92

Regulation 94(h) of the Regulations of the Registry

93

ICC, Lubanga Case, 13/10/2006, para. 33 [online]

94

ICC, Lubanga Case, 29/01/2008, para. 41 [online]

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Notably, judicial discretion is a distinguished feature of decisions that establish in-court protective measures. In other words, judges and the chambers possess sovereign power to evaluate which measures they deem most appropriate to ensure the protection of witnesses following a careful assessment which considers the facts of an individual case. This means that even if the involved parties agree upon certain 96 protective measures, the chamber is to analyze them and rule to what extent they are compatible with the rights of the accused and principle of publicity. Thus, the granting 97 of any necessary protective measures is essentially a matter for determination by the relevant chamber, which has the authority to rule as it sees fit on the merits of individual applications. Following this line, the Trial Chamber in the Katanga Case has affirmed: 98

[I]f it is necessary to protect the safety, physical or psychological well-being of the victims or third persons who are implicated by the participation of a victim, the Chamber may authorise redactions. Under no circumstances may the Legal Representatives apply redactions without prior authorisation by the Chamber. 99

It is important to note that once a protective measure is ordered by the chamber, it will have full force and effect in relation to any other proceedings before the Court and shall continue even after proceedings have been concluded”. Thus, a 100 protective measure can only be revoked or altered upon a new decision issued by the competent chamber.

ICC, Katanga Case, 13/05/2008, para. 2 [online]

96

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 349

97

ICC, Lubanga Case, 29/01/2008, para. 35 [online]

98

ICC, Katanga Case, 20/11/2009, para. 27. See also ICC, Situation in the Democratic Republic of

99

Congo, 14/05/2009, para. 26 [online]

Regulation 42 of the Regulations of the Court

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Even though judges and chambers have the power to provide for protective measures as they deem adequate following an individualized consideration of risks in each particular case, two principles usually orient decisions regarding procedural 101 exceptions aimed at the protection of victims and witnesses: the necessity of protection and the proportionality of the specific measure being considered. These principles are relevant both to pretrial and trial proceedings. 102

The principle of necessity

Pursuant to Rule 81(4) of the ICC Rules, a Chamber shall take “the necessary steps” to protect witnesses and members of their families. In its initial case law, the ICC has ruled that the Victims and Witnesses Unit must “ensure that there is 103 proper protection for any witness who, following a careful investigation, faces an established danger of harm or death”. The Court later underlined that exceptions to the normal disclosure rules, like remote testimony, are to be made on a case-by-case basis, as the chamber deems necessary. 104

The Appeals Chamber in the Lubanga Case stated that:

Rule 81 (4) of the Rules of Procedure and Evidence itself points in that direction by requiring the Chambers to take the "necessary steps to ensure the confidentiality of information". The use of the word "necessary" emphasises the importance of witness protection and the obligation of the Chamber in that respect; at the same time, it emphasises that protective measures should restrict the rights of the suspect or accused only as far as necessary. 105

ICC, Ruto and Sang Case, 03/09/2013, para. 14 [online]

101

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 348

102

ICC, Lubanga Case, 16/12/2008, para. 128 [online]

103

ICC, Situation in the Democratic Republic of Congo, 14/05/2009, para. 36 [online]

104

ICC, Lubanga Case, 13/10/2006, para. 37 [online]

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The idea that judges and chambers are to verify on a case-by-case basis whether the restrictions imposed on the rights of the accused were justified by real fear for the safety of the witnesses has been repeatedly reiterated by the Court. The 106 ICC practice indicates that witnesses for whom protective measures are sought must have a genuine fear for their own safety or the safety of their family. In this sense, 107 protective measures may only be granted if there is an objectively grounded risk to the security or welfare of the witness or the witness’s family should it become known that the witness has given evidence before the Tribunal or the content of the information provided by the victim or witness. 108

The decision by Judge Bertram Schmitt in the Ongwen Case provides important clarification in that matter:

In determining whether in-court protective measures are warranted, the Chamber must ensure that any such measure is demanded by an ‘objectively justifiable risk’ and is proportionate to the rights of the accused. While the Single Judge understands that the concept of ‘risk’ necessarily involves a certain level of speculation and prediction, the available information must still indicate the existence of circumstances for which in-court testimony, in the absence of adequate protective measures under Rule 87 of the Rules, creates or unduly increases an impermissible danger to any of the legitimate interests of witnesses protected under Article 68 of the Statute – be it their physical security and safety or their psychological well-being, privacy and dignity. 109

See ICC, Lubanga Case, 29/01/2008, para. 41; ICC, Katanga Case, 27/01/2010, para. 6; ICC, Ruto

106

and Sang Case, 03/09/2013, para. 27; ICC, Gbagbo and Blé Goudé Case, 04/12/2015, para. 17; ICC, Bemba Case, 08/09/2015, para. 3; ICC, Ongwen Case, 29/11/2016, para. 54 [online]

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 350

107

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 343

108

ICC, Ongwen Case, 29/11/2016, para. 8 [online]

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To be able to adequately make an assessment of the appropriateness of the protective measures sought by a party, the chamber needs to be in possession of all the relevant information showing that there is a real fear for the witnesses and their families and that there is an objective justification for such fear, given both the general facts and circumstances underlying the case and the specific situation of the person to be protected. Therefore, the party seeking protective measures shall provide all relevant material which demonstrates that the fears of its potential witnesses are well founded. 110

The principle of proportionality

The proportionality of the protective measure under consideration, on the other hand, is closely related to the previously addressed issue of balance between victims’ and witnesses’ right to protection and the rights of the accused. Despite not being explicitly referred to in the relevant provisions of the ICC Statute and the Rules, the principle of proportionality is encompassed in the reference to the necessity of the protective measure in Rule 81(4) of the RPE as well as in the last sentence of Article 68(1) of the Statute, which provides that witness protection measures “shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”. 111

The use of the word “necessary" in Rule 81(4) of the RPE emphasizes the importance of witness protection and the obligation of the Chamber in that respect. At the same time, it emphasizes that protective measures should restrict the rights of the suspect or accused only as far as necessary. The decision of the Trial Chamber in the Bemba Case is in line with such understanding in regard:

ICC, Ongwen Case, 29/11/2016, para. 30 [online]

110

SAFFERLING, International Criminal Procedure (2012), p. 519

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Bearing in mind the general principle of publicity, protective measures should be granted only on an exceptional basis following a case-by-case assessment. It must be considered whether the measures are necessary in light of an objectively justifiable risk and proportionate, bearing in mind the rights of the accused. 112

Thus, if less restrictive protective measures are sufficient and feasible, a Chamber must choose those measures over more restrictive measures. Such 113 understanding was affirmed by the Appeals Chamber in the Lubanga Case:

The non-disclosure of the identity of witnesses or of portions of prior witness statements would be authorised by the Chamber pursuant to rule 81(4) of the Rules of Procedure and Evidence only after an evaluation of the infeasibility or insufficiency of less restrictive protective measures. 114

In that sense, protective measures must be strictly necessary and proportionate, which entails that the measures should restrict the rights of the suspect of accused only as far as necessary to ensure the safety and well-being of the concerned person. Furthermore, measures implemented by the Chamber must be necessary, 115 proportionate and consistent with standards laid down in internationally recognized human rights law. 116

Provisions for protective measures on the conduct of the proceedings

As the ICC faced new challenges in the protection of victims and witnesses, the chambers modified their practice regarding in-court protective measures. One of the

ICC, Bemba Case, 08/09/2015, para. 3. See also ICC, Katanga Case, 27/01/2010, para. 6 [online]

112

TOCHILOVSKY, The law and jurisprudence of the international criminal tribunals (2014), p. 348

113

ICC, Lubanga Case, 13/10/2006, para. 37 [online]

114

SLUITER, International criminal procedure: principles and rules (2013), p. 843

115

IBA, First Challenges: an Examination of recent landmark developments at the ICC (2009), p. 27

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main changes hereof was the progressive inclusion of provisions dealing with protective measures in the decisions on the conduct of the proceedings.

The decision defining the conduct of the proceedings for the Katanga Trial contained only a brief reference to the issue of protective measures, which only states that procedural measures of protection were to be authorized by the chamber. The 117 following decision, in the Ruto and Sang Trial, already established that applications for protective measures were to be made “in such time as to enable the consultation with the VWU and the responses to the application, as well as the Chamber’s ruling on the application before the commencement of testimony of the witness concerned”, instituting that this should happen no later than one month before the commencement of testimony. 118

The decision on the Ntaganda Case was the first to comprise detailed information regarding the application of procedural measures of protection. Besides reaffirming that requests for protective measures were to be made “in such time as to enable the VWU to make observation and advise the Chamber, and allow for responses to the request to be filed, before the Chamber's ruling on the request”, ruling that this should happen “no later than four weeks as the before the scheduled commencement of testimony”, the decision also set orientations regarding the use of private and/or 119 closed sessions, and the production of public redacted transcripts of hearings. The 120 121 decision was later supplemented to, among other things, include a provision

ICC, Katanga Case, 20/11/2009, para. 27 [online]

117

ICC, Ruto and Sang Case, 09/08/2013, para. 30 [online]

118

ICC, Ntaganda Case, 02/06/2015, para. 50 [online]

119

ICC, Ntaganda Case, 02/06/2015, para. 58-59 [online]

120

ICC, Ntaganda Case, 02/06/2015, para. 60-62 [online]

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encouraging the parties to “group questions likely to elicit confidential or identifying information in order to minimize the need to move in and out of private session”. 122

The following decisions, which determined the conduct of the proceedings for the Bemba Trial, the Gbagbo and Blé Goudé Trial, and the Ongwen Trial , 123 124 125 also included provisions like the ones inaugurated in the decision on the Ntaganda Case, each one of them setting specific orientations for the request and implementation of in-court protective measures.

The inclusion of procedural provisions related to protective measures in the conduct of proceedings of each trial evidences the Court’s commitment to the protection of victims and witnesses, and illustrates how the Court has been trying to implement them in a way that impacts the duration of the trial and the rights of the accused to the minimal extent.

Factors that mitigate the presumption against the use of protective measures Upon the analysis of the relevant jurisprudence of the ICC, it is possible to single out two circumstances in which the obligation to fully support a request for a protective measure with evidence showing that there is an objectively justifiable risk, given both the general facts and circumstances underlying the case and the specific situation of the person to be protected, is mitigated.

ICC, Ntaganda Case, 27/05/2016, para. 12[online]

122

ICC, Bemba Case, 02/09/2015, para. 24-27 [online]

123

ICC, Gbagbo and Blé Goudé Case, 03/09/2015, para. 62-66 [online]

124

ICC, Ongwen Case, 12/07/2016, para. 34-37 [online]

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First, the security situation in a particular territory may serve as a partial mitigating factor to the presumption in favor of the publicity of proceedings, thus favoring the presumption in favor of the use of protective measures. In this sense:

The Chamber emphasises that a case-by-case evaluation requires an individualised consideration of risk in each particular case. It does not consider that generalised assertions regarding the degree of domestic support for the trials can be sufficient for these purposes. However, factors such as the security situation in a particular territory may be pertinent when considered in relation to the circumstances of a particular witness. 126

From the above-mentioned ruling it is possible to infer that whenever the security situation of a specific territory imposes a general and abstract risk on those who take part the criminal proceedings before the ICC, the evidentiary threshold to justify the application of protective measures will be lower.

Second, there are factual circumstances which, in principle, warrant the provision of protective measures for specific categories of witnesses, namely the fact that the victim or witness has suffered sexual violence, or that the testifying witness is 127 a child. This means that unless there are other circumstances warranting further 128 differentiation, the protective measures will applied for the witnesses falling into 129 these categories as the default option. According to the Trial Chamber in the Ongwen Case, this can be perceived as a presumption in favor of protective measures for victims of sexual violence:

ICC, Ruto and Sang Case, 03/09/2013, para. 14. See also ICC, Ntaganda Case, 02/11/2016, para. 6

126

ICC, Ongwen Case, 29/11/2016, para. 16 [online]

127

ICC, Ongwen Case, 29/11/2016, para. 16 [online]

128

ICC, Ongwen Case, 29/11/2016, para. 9 [online]

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[T]he [Rome] Statute provides a presumption that protection of the legitimate interests of victims of sexual violence, due to the inherent nature of such crimes and the regrettable but persisting associated stigma, constitutes in and of itself a proportionate and justified exception to the principle of publicity of the proceedings. This presumption is however not absolute as the Chamber, “having regard to all the circumstances, particularly the views of the victim or witness”, may still order otherwise. 130

Likewise, the most recent case law signals that, even though the principle of publicity is still the rule in the realm of the proceedings before the ICC, the Court is fully committed to its duty to protect victims and witnesses, especially the most vulnerable ones. 


ICC, Ongwen Case, 29/11/2016, para. 24 [online]

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CONCLUSION

The present work intended to analyze the ICC practice on protective measures, especially what the Court has done so far in order to fulfil its statutorily established obligation to protect victims, witness and any another person at risk on account of a testimony given during the proceedings. In other words, the goal was to evaluate whether and how the ICC effectively ensures the safety and well-being of those who decide to participate in the proceedings before the ICC, and substantially contribute to the Court’s objectives and purposes by doing so.

In this regard, the use of measures of protection outside the courtroom, such as the ICCPP, is to be considered a last resort. Not only because it entails significant costs to both the Court and the person to be protected, but also as it is ultimately dependent on the voluntary cooperation of third States, which significantly diminishes the long-term reliability of such measures.

The alternative is the application of protective measures within the conduct of proceedings before the ICC, known as in-court protective measures or procedural measures of protection. This method of protection, when properly used, allows the safeguard of victims and witnesses, while also guaranteeing that the rights of the accused are respected. Additionally, it allows that both the local and the international communities follow the conduction of the proceedings, as they have a legitimate interest in seeing those responsible for threatening the universal peace, security and well-being being brought to justice.

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