In the upcoming confirmation of charges hearings of the Kenya cases at the International Criminal Court (ICC), there has been some back and forth about whether witness statements alone suffice. Defense lawyers in the first case have applied to call witnesses to testify, bringing attention once again to the issue of how witnesses will be handled during the Kenya cases. This has been a concern since last year when some of the suspects alleged witnesses were being coached, a claim the prosecution later denied. In fact, the prosecution even warned suspects that they could face charges if they were found interfering with witnesses. Then last month, the Kenyan daily newspaper, The Star, ran a story quoting witnesses believed to be preparing to testify before the ICC, claiming they are negotiating “life protection” with the court. The Star described the unnamed individuals as witnesses for the prosecution.  

Jennifer Easterday, who has monitored and conducted research on the trial of former Liberian leader Charles Taylor at the Special Court for Sierra Leone (SCSL), spoke with Tom Maliti about how witness protection issues were dealt with during that trial.

From the trials you have followed, has there been any controversy concerning witness protection?

Witness protection is always a delicate issue. The trial chambers must balance the accused’s rights to a fair and public trial with the obligation to protect the safety of the witnesses who testify before it. The ICC also has obligations to protect participating victims from risks associated with their involvement with the court.

The “controversy” about witness protection usually revolves around how the judges deal with this balancing test. However, in my experience, all parties recognize the need to provide protective measures to witnesses and victims who face legitimate risks due to their involvement in the trial.

However, in the Taylor trial before the Special Court for Sierra Leone, which I monitored and researched for two years, the controversy over witness protection extended to allegations that the prosecution had used the promise of witness protection to induce testimony and had made improper payments to witnesses to “buy” their testimony.

In those trials, have defense teams challenged any testimony on the basis that a witness under a protection program lacks credibility?

In the Taylor trial, the defense team cross-examined the prosecution witnesses on the payments they received from the OTP [Office of the Prosecutor] and WVS [Witness and Victims Section] . While this wasn’t challenging the protective measures per se, in some instances the questions were about payments made to witnesses who had been offered protective measures, including relocation.

Once a potential witness became an official witness and was processed by the WVS, they might be relocated. The WVS also has authority to make provisions, including payments, for the protection and support of protected witnesses. The prosecution explained that witnesses who are relocated for safety reasons are provided with finances to help set them up in their new location and “make them whole.” The prosecution said that the amount and type of resources depends on the particular witness (such as where they go, the size of their family, etc.) and that the OTP did not follow a protocol when deciding how much to give each witness.

For example, the defense questioned payments made for things like computer courses, refencing a witness’ property, medical expenses, and other uncategorized expenses. The defense pointed to several instances of large payments made by the OTP and WVS and suggested that the testimony of those witnesses had been bought by the OTP. This was also a tactic used in the RUF case before the SCSL. This tactic was intended to impeach the witness’ testimony.

The prosecution responded to these allegations by consistently stating that they had the authority under the SCSL Rules of Procedures and Evidence to take whatever steps they needed to provide for the safety, support, and assistance of potential witnesses and sources. This includes making payments to potential witnesses. They prosecution also argued that it had disclosed all payments to witnesses and that nothing was improper.

At the very end of the trial, the defense filed a motion to have some witnesses recalled to ask about post-testimony relocation. The defense also argued that the prosecution promised witnesses that they would be relocated as an inducement to cooperate and testify. This motion was dismissed by the trial chamber because the chamber found that it was untimely.

What has been the result of those challenges to the testimony?

There have been no judicial decisions on the merits of these arguments about credibility. The Taylor trial judgment is expected this fall, perhaps the trial chamber will deal with the substantive aspects of the matter then.

Have questions raised in those trials led to changes in witness protection programs?

Not to my knowledge, no.

What are the other issues surrounding witness protection programs that have arisen?

Some have also expressed concern over witnesses “bargaining” with the prosecution and defense for their testimony – the individual would testify for whichever party “pays” more. This, besides raising obvious concern over the truth of such witness testimony, could also lead to a legal culture of “pay to play” in the countries where these international courts have a presence.

Also, in the Taylor trial and before the SCSL in general, protected witnesses were usually “insider” witnesses who were members of the armed groups responsible for the atrocities in that country. So, some might be concerned that these insider witnesses benefit from the protective services of the court, including financial assistance, while victims who did not ask for protective measures did not. Also, some might consider that since there was no set protocol, some protected prosecution witnesses might be able to negotiate a better “package” with the OTP or WVS or negotiate for more financial assistance than other protected witnesses.

How have they been handled?

The first issue has not been handled as far as I know, although ensuring that strict protocols are followed could help reduce the threat of leaving a “pay to play” legacy within the legal culture of the affected country as well as reduce allegations that witnesses are treated disparately depending on what kind of “package” they negotiate with the OTP or WVS.