During the trial of Thomas Lubanga Dyilo, the first for the International Criminal Court, challenges to effective witness protection have become apparent. The court, and in particular presiding Judge Adrian Fulford, has been active in its approach to witness protection.
However, short and long-term problems plague the witness protection program, and will demand diligence and financial support from the court as more trials begin.
Legal Basis for Witness Protection
The court has an obligation under its founding document, the Rome Statute, to protect witnesses. At trial, the judges have the power to take all “necessary steps” to protect witnesses and their families, including the use of private hearings and the presentation of evidence electronically or by “special means.”
The judges can raise issues about witness protection, as can any party or any state. However, it is the party calling the witness that is ultimately responsible for requesting protective measures for witnesses. Witness protection options include participating in a robust in-country witness protection plan managed by the Victims and Witnesses Unit (VWU) and called the ICC Protection Program (ICCPP), as well as measures to protect and hide the identities of witnesses during trial in The Hague.
Requests for protection must be based on objective grounds, such as actual threats. “Personal preferences or subjective fears of individual witnesses” are not enough, Presiding Judge Adrian Fulford has said, although they can be considered by the court.
Balancing the Defendant’s Rights and the Safety of Witnesses
In determining whether a witness can receive protection, the judges must balance the safety of the witness against Lubanga’s right to a fair and public trial.
In a decision on applying protective measures, Fulford said the court recognized “the importance of truly open justice,” and noted that the principle of public trials has been repeatedly emphasized by the European Court of Human Rights as an essential element of a fair hearing.
During the Lubanga trial, the prosecution has generally requested image and voice distortion and pseudonyms to protect witness identities. The court can also go into closed session if particular elements of testimony could reveal the identity of the witness or others who are subject to protective measures.
The prosecution in the Lubanga trial has argued that the protected witnesses’ testimonies will still be accessible to the public, even if their identities are not. The prosecution also has noted that the identity of witnesses will be known by the accused, which is an important concern given that Lubanga has a legal right to know the case against him.
The Lubanga defense has argued against certain protective measures.
Although the defense maintains that witness safety is paramount, it has argued that witness protection measures provide a significant risk that Lubanga’s right to an open trial will be undermined. For example, the proportion of anonymous witnesses is much higher in the Lubanga trial than at other international tribunals.
The judges have overwhelmingly granted requests for protective measures.
By granting protective measures to 20 prosecution witnesses, who are all a part of the witness protection program, Fulford considered the effect of regional instability on witness safety.
“All of these witnesses have been taken into the court’s protection program because of the risks to their personal safety …,” he said. “If any of their identities were to become known, the whole purpose of the protection which has been afforded to the witnesses would be undermined, and they, together with their families would be at risk for an indefinite period of time.”
However, witnesses are not always granted the protective measures they seek.
In one case, a judge from the Democratic Republic of the Congo, who was testifying in the Lubanga trial, asked to be granted protective measures after arriving in The Hague. The prosecution argued that because his testimony was going to include sensitive information about the current president and government of the DRC, the judge was afraid he would be in danger.
Fulford pointed out that there were no objective reasons for his fears about testifying, given that he had agreed to testify openly before coming to The Hague. Therefore, the court held, the request for protective measures was unfounded. Moreover, Fulford noted that Lubanga had known for months that this witness was to testify against him, and yet the judge had not received any threats.
Fulford said, “the principle of open justice is of high importance and requests for anonymity should not be lightly granted. This witness is in a very different category from the previous witnesses in this trial who have enjoyed a high level of protection, and it is important that these applications are not routinely made in the expectation that they will be routinely granted.”
The witness ultimately agreed to testify openly.
Challenges to Witness Protection: Logistics, Communication, and Transparency
In spite of the rigorous approach to witness protection applied in the Lubanga trial, there are significant problems facing the court’s mandate to protect witnesses, including logistics, communication, and the need for transparency.
Notably, each time such a problem has arisen at trial, the judges have taken a very active approach to solving the problem. Some have involved technical troubles in the courtroom.
For example, the transcript for a private hearing between the defense counsel and the judges was inadvertently broadcast and seen by the prosecution. Fulford was irate at the breach of privacy and said, “this is a matter of extreme concern. Lives could be lost if confidentiality in these circumstances is breached.”
It was the second time in two weeks that this had occurred, leading the court to refrain from holding any private sessions until it had assurances from the Registrar of the court that the problem would not reoccur.
Another issue related to the need for a system of lights to indicate to the witness and members in court whether the court was in closed or open session. The order for this system of lights came after one witness gave testimony in public session, thinking the session was closed.
Slips such as this can lead to sensitive information being leaked by members of the public gallery watching the trial.
Communication between the parties and VWU is another significant issue the ICC faces.
Unlike other tribunals, the judges in the Lubanga case have forbidden parties to have contact with witnesses before their testimony; only the VWU can interact with witnesses after they arrive in The Hague. Therefore, the party responsible for requesting protective measures cannot meet with witnesses to re-evaluate their need for protection. Communication between the groups will have to be frequent and fluid in order to insure effective witness protection.
This communication is important on the ground in the DRC as well. Human Rights Watch reported in 2008 that the prosecution relocated witnesses outside of the VWU program, apparently over a disagreement as to whether participation in the witness protection program was warranted.
This apparent breach of protection protocol by the prosecution’s office, even if made under the auspices of heightened witness protection, is extremely worrisome as it can ultimately lead to the breakdown of the court’s overall protection scheme.
Human Rights Watch argued that VWU, as the only department within the ICC that has protection expertise, should retain sole responsibility for the witness protection program.
Another challenge is the frequent use of closed sessions.
Public hearings are not only a right of the accused, but are also critical for informing the public of what happens at trial. Indeed, after the court went into private session on the first day of testimony, local groups expressed anger and frustration after the screen went blue on the first and long-awaited day of trial.
Given the current poor reputation of the ICC in Africa, fewer closed sessions would help promote the image of justice and transparency. However, these are delicate issues the court must balance and the safety of the witnesses should be the ultimate concern.
Fulford acknowledged this in a recent apology for the lengthy closed sessions.
“We have very heavy responsibilities to protect witnesses who come to give evidence at this court. If they are at risk of retribution, if their identities become known, particularly if that retribution may involve some kind of real prejudice to them or their families, it is necessary for parts of their evidence, which would reveal who they are, to be given in private. Although this means that the public are excluded, and that is something that we very much regret, the critical responsibility that we have is to ensure that nobody’s safety or security is put at risk because of their preparedness to come to give evidence before this court,” he said.
This apology reveals the active stance taken by the judges and the other organs of the court. It demonstrates that witness protection is a key concern of the ICC. Given this current emphasis on witness protection, it is hopeful that the ICC will continue to provide resources and the necessary attention to meet the long-term challenges it faces.
The views expressed are of the author and do not necessarily reflect the views or opinions of the Open Society Justice Initiative or IWPR-Netherlands.