VI. Victim and Witness Protection and Support
Experience from the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the Special Court for Sierra Leone, strongly suggests that individuals are likely to face serious security, psychological, and physical challenges related to their involvement with the International Criminal Court, whether serving as witnesses or, under the innovation of the Rome Statute, as victim participants. Through various responsibilities shared across its organs, the court is obligated under article 68(1) of the Rome Statute to provide for the protection of victims and witnesses appearing before the court, including ensuring their safety, dignity, privacy, and physical and psychological well-being.494 This obligation extends to all witnesseswithout regard to their affiliation with either the prosecution or the defenseand to all victims.
To fulfill the courts obligations, Human Rights Watch considers that physical and emotional protection must be addressed from the initial interaction with the court through trial and beyond. The capacity of the court to ensure adequate protection and support is likely to determine the extent to which witnesses will cooperate with the court and to which victims will take an active part in proceedings. Witness cooperation and victims participation, in turn, are key factors in the courts ultimate success.
The ICC faces evident challenges to providing adequate protection and support to victims and witnesses. National authorities in the ICC situation countries are often incapable or unwilling to assist with meaningful protection. Those national authorities that may have the means to provide protection may, nonetheless, be impaired in their ability to do so where they have lost the local populations confidence through conflict or other circumstance.495
At the same time, effective systems of witness and victim protection are all the more important where the ICC operates in the context of an ongoing conflict that poses serious, daily security risks to the civilians, human rights activists, and staff of international organizations on whom ICC investigations may depend. Moreover, logistical concerns such as limited road and communications access in remote locations where witnesses and victims may live make protection operations and rapid response to protection threats extremely difficult, a problem exacerbated by the ICCs financial and capacity constraints.
Against this difficult backdrop, the ICC has made substantial progress toward setting up effective systems of victim and witness protection and support. Protection and support for witnesses and victims has consistently received high-level attention across all the organs of the court. Our research indicates that there have been few, if any, significant security incidents since ICC field operations began. In light of the courts operation in ongoing conflict situations, this is a particularly impressive achievement. The court can be proud of the protection and support programs that it has developed. These programs provide an important opportunity for the court to build a legacy of such programs in situation countries through work with local partners and authorities.
The ICCs protection programs (ICCPP), however, have yet to face their real test: risks are likely to mount as trials get underway and as witnesses and victims face increased exposure through their association with the court. Human Rights Watchs research indicates, for example, that threats increased in the Democratic Republic of Congo following the hearing confirming charges against Thomas Lubanga.496 To continue to build a system of witness and victim protection and support that can meet the courts needs, substantial difficulties must be faced. As discussed below, these include inadequate resources within the Victims and Witnesses Unit of the Registry, and recent coordination problems between the Office of the Prosecutor and the VWU that suggest that the courts protection and support strategies must adapt to the needs of a diverse and expanding caseload.
In article 68(1), the Rome Statute gives the Court a general responsibility for the physical and psychological well-being of victims and witnesses. Other provisions of the courts statute, as well as its rules and regulations, delegate specific responsibility and authority for witness and victim protection and support across the courts organs.
The Rome Statute establishes a Victims and Witnesses Unit within the Registry. The VWU is mandated to provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses,497 as well as to advise the court on appropriateness of such measures.498 In addition, the VWU shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.499
The VWU currently has 38 permanent staff and four positions funded through General Temporary Assistance (GTA). Seventeen of the staff are based in The Hague, while 25 are located in Central African Republic, DRC, Chad, and Uganda. Recently, the VWU has been authorized to recruit four more GTA staff to be based in the field for a period of six months. Staff are organized into three divisions: operations, protection, and support. Broadly speaking, operations staff have responsibility for implementation and logistics, while protection and support staff make assessments and recommendations within their respective competencies. In practice, however, and given the limited staffing across the VWU, staff from different divisions often work collaboratively to meet their collective mandate.500
The VWU has consistently emphasized the importance of court staff and intermediariesthat is, those individuals or organizations who facilitate victim and witness cooperation with the courtconducting themselves in a manner that minimizes or avoids security risks as a primary means of accomplishing the courts protection mandate.501 To that end, the VWU cooperates in the risk assessment that precedes OTP investigation missions and that identifies protection and support needs and measures to be taken in connection with investigations.502 The VWU and OTP have jointly developed security protocols for all situations under investigation to guide the work of investigators and of other ICC actors who contact victims and potential witnesses. 503 Where appropriate, specific protection mechanisms are put in place. In the field, VWU staff have also started making presentations to intermediaries on best practices for reducing security risks.504
Where protective measures are required, the VWU has developed two initiatives. First, the VWU has established an emergency hotlinethe Initial Response System (IRS)that allows individuals within defined geographic boundaries to seek assistance at any time should their security be threatened.505 A call to the hotline activates a network of local partners with the capacity to intervene and extract an individual to a safe location in case of an urgent threat;506 that risk is subsequently assessed by VWU protection officers to determine whether extended protection measures are required.507 The identities of potential users of the hotline are withheld from these local partners until action is required; the involvement of local partners is limited for the most part to following a pre-established protocol to bring a threatened individual to a safe location.508
In practice, however, it has been unclear who pays the costs of emergency interim measures. Protective measures often require provision of material assistance, particularly where an individual is relocated and removed from his or her source of income. But where material assistance is provided directly by a party to a witness, it may create real or perceived problems of bias and credibility. As discussed below, it would be preferable to have emergency interim measures fully funded out of the Registry.509
Second, the VWU has established an ICC protection program. Assessment for participation in the ICCPP is triggered by a referral of the prosecution, counsel, or, in the case of victims, of their legal representative(s).510 The VWU has no independent role in initiating assessments for any individuals. Following a referral, protection and support staff within the VWU then conduct a joint assessment, submitting their recommendation as to participation in the ICCPP to the registrar who takes the final decision to admit an individual into the program.511 The assessment process is lengthy, taking an average of two to three months,512 during which time some interim protective measures are available including temporary relocation.513
Specific details of the ICCPP are confidential,514 as are the exact criteria for participation.515As a general matter, however, the VWU requires a high likelihood that the witness will be harmed or killed unless action is taken for ICCPP admission, and it considers that the obligation to provide protection only relates to risks arising out of interaction with the Court.516 The VWU has indicated that its model of risk assessment corresponds to the models used and approved widely amongst witness protection programmes.517 This standard has become the subject of a dispute between the VWU and the OTP, as discussed below.518
It is clear, however, that the protection program is impressively comprehensive. It requires intensive investment of personnel and financial resources on the part of the court, while at the same time placing onerous demands on participants. For example, participation in the ICCPP ordinarily entails relocation, either in country or, much less commonly, abroad.519 Participants must sign a memorandum of understanding with the VWU in which they agree to keep details regarding the operation of the program confidential and to avoid communication with family and friends except through VWU staff. Once in the program, participants receive physical protection and material and psychosocial assistance from the court with the aim of becoming self-sufficient. VWU protection and support officers maintain close and regular contacts with participants.520
Information about the extent to which the IRS and ICCPP have been used is also confidential. Our research in the field suggests that there have not been any security incidents associated with the courts protection programs and that the main difficulties experienced thus far relate to a lack of sufficient personnel in the field. Human Rights Watch recommends that the VWU consider whether it could provide training programs to local authorities to contribute to the development of national witness protection programs, which are largely non-existent in the ICC situation countries, thus contributing to the legacy of the court in situations under investigation.521
Apart from some occasional interim measures such as temporary relocation, the ICCPP is the exclusive vehicle through which field-based protection is provided.522 Although risk assessments will inevitably require timefor example, interviews must be conducted with the individual at risk and the credibility of threats analyzed with regard to the broader contextthe two-month delay in making decisions as to admission into the ICCPP is widely viewed as problematic. Assessments are largely conducted by VWU staff based in The Hague.
Delays in taking decisions on the admission of an individual to the ICCPP may create protection gaps and uncertainty for witnesses. They may, in turn, delay court proceedings that depend on protection measures first being in place for witnesses and victims. Such delays have already occurred in the run-up to the start of the Lubanga trial and in the confirmation of charges hearing in the Katanga and Ngudjolo case. There, a related issue has been the effort of the Office of the Prosecutor to overtake the Registrys role in assessing whether an individual should be admitted to the ICCPP. As discussed below, Human Rights Watch firmly believes that the VWU should maintain control over risk assessments and over implementation of protection measures, but the emerging disagreement between the VWU and the OTP raises broader questions about whether the courts protection programs may need to be enhanced to ensure sufficient flexibility to meet the courts needs.
In addition to physical protection, the VWU is mandated to provide counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.523 The support division of the VWU currently consists of 13 staff with psychosocial expertise, seven of whom are located in The Hague, and six of whom are in field offices in Uganda, Chad and Congo.524
As with admission to the ICCPP, eligibility for support assistancewhich may range from basic medical care and clothing to long-term counseling and advanced medical proceduresis triggered by a referral in the case of a witness by either the prosecution or the defense, or in the case of a victim, by his or her legal representative.525 VWU staff carry out a needs assessment and submit recommendations for support assistance to the registrar, who takes the final decision as to what support, if any, will be provided.526 Although a support needs assessment is carried out in conjunction with every referral to the ICCPP and support assistance is provided as a component of the ICCPP, an individual does not need to be in the ICCPP to benefit from the courts support assistance.527 The VWU relies on local networks of providers in providing support assistance and prescribes assistance that is commensurate with services ordinarily available within the individuals community.528
The VWU has considerable responsibility for the security and support of victims and witnesses at trial.529 The VWU has developed an extensive protocol for bringing individuals to The Hague and for assisting them before, during, and after their testimony. Human Rights Watch understands that the protocol deals comprehensively with most issues that could be expected to arise, for example, immigration issues, transportation, accommodation, appropriate clothing, dependent care, and round-the-clock support and assistance outside of the courtroom, particularly immediately before and after giving testimony.530
The VWU requests parties to provide it with information necessary to make these arrangements 35 days in advance of the individuals appearance before the court,531 and it further requests notice from parties as soon as possible of any particularly vulnerable witnesses in order to ensure that adequate support services are arranged.532 Under the Regulations of the Registry, some witnesses may be entitled to bring accompanying support persons,533 in which case the VWU is also responsible for making arrangements for these individuals.
Once a witness is in The Hague, the VWU is charged with witness familiarization, that is, familiarizing witnesses with the courtroom and other trial participants, as well as with their role in the proceedingsincluding the obligation to give truthful testimonyand with discussing any security concerns that may require protective measures in advance of their testimony.534 Protective measures that may be ordered by the chamber are discussed below; the VWU is empowered under the courts regulations to bring any need for such measures to a chambers attention.535 In the Lubanga trial, the VWU will also be responsible for providing witnesses with copies of their statements in order to refresh their memories.536 This role for the VWU was not originally foreseen.
Finally, Trial Chamber I also has put the VWU in charge of organizing a pool of in-court assistantspsychologists and other professionalswho can be made available to accompany vulnerable witnesses in the courtroom.537 It is envisioned that in-court assistants will increase the witnesss sense of emotional security and will assist the chamber in taking any measures necessary to minimize the trauma of giving testimony.538
It is clear that the VWU has developed a comprehensive program of support in connection with a witnesss or victims appearance at the court. As the Lubanga trial chamber has emphasized, however, the parties, other participants, and the bench itself share responsibility for the well-being of witnesses.539 The success of the VWUs plans will depend in part on cooperation among all the parties, participants, and the bench, including in the manner in which witnesses are examined on the stand.
The Rome Statute gives the Office of the Prosecutor some specific obligations for witness protection. In addition to consulting with the VWU on protective measures and to making referrals for protection and support,540 the OTP must take measures during investigations and at trial to provide for victim and witness well-being.541 The prosecutor may also make an application to a chamber to order protective measures during court proceedings.542
The OTP has adopted a number of strategies for minimizing the risks posed to witnesses by its investigations. Essentially, the office applies an inclusive duty of care to anyone whose work with the court exposes him or her to risk.543 First, at the most fundamental level, the OTP strives to limit the number of witnesses required, including through the use of all alternative sources of evidence (for example, experts, lower-level perpetrators as witnesses, intercepted communications, and imagery). This avoids the creation of new security risks and trauma for a broader class of individuals.544
Second, as indicated above, investigative missions are preceded by risk assessments, while best practices protocols govern contact between investigators and witnesses and victims in the field. Investigators may request a pre-interview psychosocial assessment in the field for a witness; this assessment is mandatory for child witnesses and for victims of sex crimes.545 The assessmentwhich uses universal trauma indicia and war trauma as its baseline546is carried out either by a staff member of the OTPs Gender and Children Unit (GCU)or by a psychologist on an external roster maintained by the GCU.547
There are presently nine psychologists and psychiatrists of varied backgrounds on this external roster; the GCU is seeking to expand the roster to 14 or 15 experts to have more flexibility in meeting demand. Investigators are not permitted to proceed with an interview where the psychosocial assessment determines otherwise. The assessment, however, is only for that particular point in time, and a reassessment can be made subsequently to determine whether the witness is ready to be re-interviewed. Even where permission has been given and an interview has taken place, re-assessments may also be requested by investigators so as to monitor the well-being of the witness.548
The GCU is not responsible for initiating referrals for witnesses to the VWU support program; it only transmits investigators requests with supporting paperwork to the VWU.549 There is, consequently, no direct link between the GCUs psychosocial assessment and a resulting referral for support. To enlarge the benefit of a pre-interview psychosocial assessment to the witness, Human Rights Watch suggests that GCU staff or external experts also make a recommendation as to whether a support referral is required in a specific case. This recommendation could then be acted upon by investigators.
The GCUs mandate goes beyond psychosocial assessments and includes serving on the OTPs joint investigation teams to assist in the collection and analysis of evidence of sex crimes and crimes against children, supporting trial teams, and coordinating trainings. The GCU also has developed a child-friendly presentation that can be used by investigators in the field to introduce the ICC.550 Recent trainings coordinated by the GCU have included training for the Lubanga trial team on the examination of child witnesses and on techniques for interviewing victims of sexual violence.551
Although the OTP offers one annual internal training to new investigators, it does not include a module on interviewing victims. While psychosocial experts can sit in on interviews where requested and can offer interviewing advice to investigators as well as can require that an interview be adjourned, only some of these experts conduct witness interviews.552 We recommend, therefore, that the OTP introduce interview training for all of its investigators to further safeguard witness well-being and that these trainings be conducted several times a year in order to provide training to investigators as they are hired.
Given the sensitivity of information about investigations, Human Rights Watch is not privy to the full details of the work of investigators in situation countries.553 As discussed above in part II, we understand that OTP investigators have worked to act with sensitivity in their investigation of sex crimes and crimes against children and that, overall, their work is well regarded within the situation countries. Not surprisingly, however, representatives of civil society have noted that interviews with ICC investigators can evoke painful memories for victims.554 Investigatorswho are not based in the fieldmay not be there the day after an interview when a witness begins to feel its real emotional impact. Although investigators check-in periodically with witnesses by telephone, there may be a gap before emotional issues are identified to the court and before any referral for support can be made. Human Rights Watch is encouraged that investigators have in some cases requested psychosocial reassessments for witnesses who have already been interviewed, making evident an ongoing concern for their well-being.555 Nonetheless, this underscores to us the importance of basing investigators in the field in order to provide witnesses and victims with a consistent, accessible focal point for their concerns.556
While the OTP appears to have adopted sound policies to guide the work of its investigators in the field, its approach to working within the larger framework of the courts protection programs is proving problematic.
First, in the Lubanga case, the prosecution did not refer the majority of witnesses that it believed required protective measures to the VWU until September 2007. 557 Although attributed by the prosecution to changing security conditions in the DRC, especially as the scheduled trial date of December 2007 approached,558 this mass referral24 witnesseslikely created a backlog of assessments within the VWU, particularly in connection with a large number of referrals in the Katanga and Ngudjolo case in the following months.559 An additional eight witnesses were then referred by the OTP for protection during the first two weeks of December 2007.560 These late referrals and pending decisions by the registrar as to the necessity of protection measures were a factor in delaying the start of the Lubanga trial.561
Second, as discussed below, the OTP has relocated witnesses on its own initiative, wholly outside of the structures provided for by the VWU, apparently due to a disagreement with the VWU over determination of whether participation in the ICCPP is merited. Litigation of this disagreementwhich itself has been a factor in delays in the Lubanga trial and in the Katanga and Ngudjolo confirmation of charges hearinghas yielded slightly different approaches by Trial Chamber I and Pre-Trial Chamber I. Human Rights Watch believes that it is essential that the VWU, as the only body within the court with protection expertise, retains responsibility for the courts protection programs.
As with the courts other organs, Chambers have additional and specific responsibilities for victim and witness protection and support.
During investigations, pre-trial chambers are responsible for the protection of witnesses and victims under article 57(3)(c) of the Rome Statute. As described elsewhere in this report, the pre-trial chambers have acted on their own motion under article 57(3)(c) to convene a status conference on witness protection in the DRC situation and to invite amicus curiae submissions on witness protection in the Darfur situation.562
Pre-trial and trial chambers have an obligation to provide witness and victim protection during court proceedings and may do so through a variety of protective and special measures.
Protective measures include expunging the individuals name or identifying features from the public record; prohibiting the parties and participants in a proceeding from disclosing the same; and using electronic presentation of evidence, identity-altering technologies, pseudonyms, and in camera proceedings. These measures may be taken on the chambers own motion, or at the request of the victim or witness, his or her legal representative, the prosecution, or defense counsel.563
A chamber may take special measures to facilitate testimony of vulnerable witnesses and victims, including by permitting a psychologist, family member, or other individual to attend the testimony of the victim or witness and by controlling the manner in which vulnerable witnesses are examined during proceedings.564
These in-court protection measures largely have not yet been tested. As mentioned above, however, Trial Chamber I has already taken steps in the Lubanga case to provide for experts to attend testimony of vulnerable witnesses. It has indicated that while it will rule on applications for protective and special measures on a case-by-case basis, it will ensure that appropriate steps are taken to guarantee the protection of all victims and witnesses, and particularly those who have suffered trauma or who are in a vulnerable situation.565 Pre-Trial Chamber I and Trial Chamber I have also granted anonymity to victim participants.566
The Chambers role in setting the rules of disclosure also entails a component of witness protection. Disclosuregenerally speaking, the exchange of materials held by the prosecution and defense in advance of trialis provided for under the courts statute and rules567 but has proved difficult in practice. In part, this may stem from differences in disclosure practices between common and civil law traditions and from the need to develop a system of disclosure uniquely suited to the ICC.568 While full discussion of the development of the courts disclosure practices to date is beyond the scope of this report, we note that these practices may impact a range of key issues, including witness protection, victims participation, the efficiency of proceedings, and, not least of all, the rights of defendants.
Indeed, some of the difficulties encountered in developing the courts disclosure practices have stemmed from the need to balance a defendants right to know the case against him or her against ensuring protection of victims, witnesses, and others. The courts statute and rules provide for limits on the timing and manner of disclosure. Of central importance, rule 81(4)empowers a chamber to take the necessary steps on its own motion or the request of the prosecution, defense, or any state in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial.
During pre-trial proceedings, Pre-Trial Chamber I has relied on rule 81(4) to authorize redactions and the use of summary evidence without disclosure of witness identity to the defense, within certain limits.569 A recent decision by the appeals chamber has authorized redactions for the protection of innocent third partiesthat is, individuals other than victims, current or prospective Prosecution witnesses or sources, or members of their familiesand of OTP and VWU staff members.570 Although the issue is on appeal at this writing, Trial Chamber I has indicated that witness identities may be withheld for the duration of trial proceedings in exceptional cases where late requests by the defense for their disclosure would make it impossible to put sufficient protective measures in place.571 In addition, Chambers have authorized extensions in the time limits for disclosure (and permitted temporary redactions in the interim) and, consequently, have delayed the start of proceedings in order to ensure that adequate protection measures are taken before witness identities are provided to the defense.572
Finally, the Rome Statute gives the court jurisdiction over witness intimidation and tampering as an offense against the administration of justice.573
Strong progress has been made by the courts organs to meet its mandate of ensuring witness and victim protection and well-being, but, given the enormity of this task, it is not surprising that challenges remain. Discussed below, these include ensuring that victims and intermediaries are included in the courts protection and support programs as appropriate; maintaining the independence of the courts protection and support programs as administered by the VWU; developing flexible, field-based approaches to complement existing protection programs; increasing psychological support to witnesses and victims; and ensuring that states parties provide adequate resources for protection, including through increasing the number of field-based staff.
Although the Rome Statute refers to the VWUs obligation to protect witnesses, victims who appear before the court, and others who are at risk on account of testimony given by such witnesses, protection for victims has been a controversial subject. Until recently, it was the Registrys position that the phrase victims who appear before the Court limited the VWU to providing for the protection of only those victims participating in the proceedings and whose status has therefore been recognized by a Chamber.574 Following a recent decision of Trial Chamber I interpreting the VWUs mandate to extend to victim applicants as well as to participants,575 the VWU has begun to develop new plans for protection of victims at this earlier point in their interaction with the court.576
Providing adequate protection and support for victims is not only required by the Rome Statute but also essential to making victims participation a reality at the court.577 Human Rights Watchs research in situation countries indicates that real threats have been made against victim participants and against the intermediaries who help to facilitate their interaction with the court;578 risks faced by witnesses appearing before other international tribunals also underscore what is at stake for individuals interacting with these tribunals. Court actors must be vigilant to limit the risks associated with victims participation, and where victims face serious threats based on their interaction with the court, they should be eligible for court-provided protection.
The VWU, however, is not presently able to implement plans to extend protection to victim applicants or to enhance existing programs of victim support and protection, given its limited staffing. Resources should be directed toward enhancing programs of victim support and protection. In addition, we note that Trial Chamber I indicated that the obligation to victim applicants is to be carried out where protection can realistically be provided by the Court during the application process.579 With sufficient personnel, there are some realistic steps that the VWU could take to extend protective measures to victim applicants. These could include developing risk assessments for victims or groups of victims, providing victims with contact information of VWU staff who can help to assess any specific threats, and increasing regular engagement between VWU staff and intermediaries to expand intermediaries awareness of precautions that should be taken to prevent risks.
Finally, we note that further reflection and work is required to ensure that intermediariesincluding local nongovernmental organization representativeson whom the court relies directly in its work and who may be put at risk as a consequence also benefit from some measure of protection from the court. We can appreciate that the ICC does not have the capacity to protect human rights defenders in situation countries. But when intermediaries come under life-threatening risk because of their direct involvement with ICC functions, the Registry should have the flexibility to assess their situation on a case-by-case basis to determine whether court-provided protection measures are warranted. Creative and less resource-intensive measures similar to those proposed above for victim applicants could also apply to intermediaries.
Citing a disagreement with the VWU over the criteria to be used to make risk assessments, the OTP has recently attempted to impose witnesses on the registry-run ICC Protection Program.
As indicated above, the VWU has required a high likelihood that the witness will be harmed or killed unless action is taken for admission to the ICCPP.580 The OTP, however, has advanced the view that the courts standard for protection ought to be the elimination of all foreseeable risks.581 It has insisted that it must be permitted to make independent assessment of the risks affecting its witnesses and the protection they need, reducing the role of the VWU to one of implementation.582 Where the VWU has rejected the Office of The Prosecutors referrals to the ICCPP, the prosecutors office has asked Chambers to order the VWU to protect certain witnesses,583 and it has even relocated at least five witnesses in the Katanga and Ngudjolo case by means wholly outside of the courts established protection programs in what it terms preventive relocations.584
This disagreement between the OTP and the VWU has come before both Trial Chamber I in the Lubanga case and Pre-Trial Chamber I in the Katanga and Ngudjolo case. With certain key differences, the decisions of the Chambers largely reject the prosecutors arguments.
In the Lubanga case, Trial Chamber I characterized the prosecutors proposed approach of eliminating all risks as amounting to assuming that any witness living in the relevant areas of the Democratic Republic of Congo who is not in the protection programme is at risk of harm, whereas determination of risk ought to be fact-sensitive rather than mechanical or formulistic. While it cautioned that the VWU must apply its criteria in a sufficiently flexible and purposive manner to ensure proper protection, it found that the VWU is approaching and discharging its considerable duties with skill and care and that the [VWUs] overall approach has been correct.585
Pre-Trial Chamber I, on the other hand, doubted whether the VWU was in fact consistently applying criteria for admission to the ICCPP and, in fact, ordered the VWU to protect a witness for whom it had earlier refused admission to the ICCPP.586 Nonetheless, it clearly found that the courts statute and Registry regulations create a single ICCPP to be run by the registrar who has the competence to decide which witnesses are accepted into the programme and to implement the protective measures granted to such witnesses.587 Article 68(1) does not give to any organ of the court the power to take whichever protective measure the relevant organ may consider necessary to protect a given witness, but rather it plac[es] on every organ of the Court the obligation to pay particular attention to the needs of the witnesses in performing their functions and to cooperate, whenever necessary, with those organs of the Court that are competent to adopt specific protective measures such as the relocation of witnesses.588 In carrying out preventive relocation, the prosecutor, in the view of the pre-trial chamber, is not only exceeding its mandate under the Statute and the Rules but it is also misusing its mandate in order to de facto shift the power to decide on the relocation of a given witness from the Registry to the Prosecution.589 The pre-trial chamber decided that the [p]rosecution shall immediately put an end to the practice of preventive relocation of witnesses.590
Human Rights Watch welcomes the Chambers efforts to supply much needed judicial intervention to provide for coordination between the courts organs on witness protection. Given that the VWUs criteria for admission into the ICCPP have not been made public in full, we can express no view either as to the appropriateness of the criteria or as to whether they have been consistently applied by the VWU in its protection needs assessments. We encourage the VWU to make public its general criteria and would welcome the opportunity to comment on these general criteria in light of our field experience in the ICC situation countries.
Human Rights Watch does consider it essential that the responsibility for making assessments about the necessity of protective measures and about the implementation of those measures remains with the VWU. As the OTP recognized in its filing in the Lubanga case, it is clear that the drafters of the Rome Statute conscientiously delegated responsibility for protection to the Registry as a neutral organ.591 As Pre-Trial Chamber I stated, this neutrality ensures equal treatment of witnesses called by the prosecution and the defense and thereby avoids compromising the credibility of witnesses.592 Where material assistance is provided to a witness in connection with relocation or other protective measures, it is especially important that such assistance not be perceived subsequently as a source of bias. This can only be guaranteed where assistanceincluding the determination of who is entitled to that assistanceis controlled by a neutral body.
In the Katanga and Ngudjolo case, as a remedial action for the prosecutors preventive relocation, the pre-trial chamber initially excluded the use of statements, interview notes, and interview transcripts of two of the three witnesses who had been relocated by the prosecution.593 The pre-trial chamber apparently determined that because no protective measures apart from those provided by the prosecutor were available for the two witnesses, their redacted statements could not be provided to the defense within the time limits established for disclosure.594 The prosecutor then withdrew the charge of sexual slavery that appeared in the arrest warrants for Katanga and Ngudjolo, apparently unable to support the charge without those witnesses.595 The Registry subsequently agreed to admit the two witnesses into the ICCPP, and, at this writing, it is anticipated that the prosecutor will reinstate the sexual slavery charge and will add charges of rape and outrages against personal dignity.596 Importantly, the Registrys decision to admit the two witnesses to the ICCPP appears to have stemmed not from reconsideration of the original risk assessment but rather from new security concerns incurred following the prosecutors preventive relocations.597
The inability of the prosecutor to go forward with charges of crimes of sexual violence in the Katanga and Ngudjolo case would have been a setback for efforts to ensure that the crimes charged before the court are representative of those committed in the underlying situation: widespread sexual violence was committed during the conflict in Congos Ituri district. It would have been a setback as well as for long-standing efforts to persuade the prosecutor of the importance of taking gender-based crimes to trial.598 The pre-trial chambers initial decision excluding evidence from the witnesses unlawfully relocated by the prosecutor underscores what is at stake for the court if a neutral and independent protection program is not fully supported and maintained by the institution as a whole.
In this regard, Human Rights Watch is concerned that the decision of Trial Chamber I in Lubanga appears to leave the door open to the prosecution to take protection measures for witnesses after the VWU has rejected a referral. Over the dissent of Judge Blattman, the trial chamber stressed that if the [VWU] properly assesses and rejects referrals to its protection programme, thereafter it is for the referring party to decide to secure any other protective solution it considers appropriate.599 For all of the reasons above, however, we urge the chamber to move away from encouraging the OTP to implement protective measures independent of those offered by the VWU. As discussed below, however, it is essential that the VWU develop additional protection measures beyond the ICCPP that will equip the court with the flexibility to meet the very real protection needs of victims, witnesses, and others interacting with the court.
We also find the decisions of the Chambers valuable in that they remind the parties that in exceptional cases the registrars decision rejecting an application for protective measures may be subject to judicial review.600 We think that this will help to ensure consistency in the VWUs approach and that it is consonant with the Chambers shared responsibility as an organ of the court for the well-being and security of witnesses.
Disagreement between the VWU and the OTP over criteria for participation in the ICCPP indicates to us a deeper problem of whether the ICCPP, standing alone, is sufficient to meet the courts protection needs.
It is for good reason that admission to the ICCPP should remain exceptional and that the VWUs threshold for ICCPP admission be high. Relocation is incredibly disruptive for the individual and his or her family. Indeed, it is Human Rights Watchs understanding that some witnesses have refused participation in the ICCPP for that reason. The ICCPP is also resource-intense for the court.
But the courts default for those not admitted to the ICCPP cannot be permitted to be the absence of any field-based protection measures, particularly where such measures may be required on an emergency, but temporary basis. Pre-Trial Chamber I appeared to recognize a gap in the courts scheme of protection for those individuals awaiting the assessment of a referral to the VWU for ICCPP admission in its recent decision on preventive relocation by the prosecution in the Katanga and Ngudjolo case, discussed immediately above. The chamber strongly recommended that the VWU develop provisional measures that may be taken for a witness or potential witness subject to a serious threat of imminent harm related to his or her cooperation with the Court but prior to a full assessment of the prosecutions or defenses application for the witnesss admission to the ICCPP.601 According to Pre-Trial Chamber I, unless the Prosecutions allegations [of serious threat of imminent harm] are, on their face, fully unsupported, [ ] in these types of exceptional situations, the need for immediate provisional measures of protection prevails over the need for a comprehensive reassessment by the Registrar of the Prosecutions statement relating to the existence of a serious threat of imminent harm to a witness or potential witness.602
While it is Human Rights Watchs understanding that interim relocation has been a measure taken by the VWU at times603 and has evidently been taken by the OTP acting outside the scope of the VWUs programs, Human Rights Watch endorses the recommendation of the pre-trial chamber that this system be regularized. The formal adoption of such provisional measures would keep the VWUs control over protective measures, would resolve disputes between the VWU and the OTP (which we understand have arisen in the past) as to which body is responsible for bearing the costs of provisional measures,604 and would extend protections that may exist within the IRS to individuals who are outside that systems geographic boundaries.
While such a system would address interim protection needs pending the outcome of an ICCPP referral, in our view, still more is needed to adapt the courts protection programs to the diversity of existing protection needs. The VWU has recently indicated that refusal to admit an individual to the ICCPP does not leave that individual without protection, but rather reflects its assessment that the person is adequately protected without the intrusion of the ICCPP.605 We think it likely, however, that there are victims, victim applicants, witnesses, and intermediaries who do not face threats meriting protection through the ICCPP or who fall outside of the IRSs geographic reach but who, nonetheless, may face threats, which unaddressed, would put them at personal risk and would impede their interaction with the court. Such threats might be addressed by temporary protective measures, including bus fare to stay with relatives for a few days, a change of telephone number, or simply a point of contact within the VWU to discuss and evaluate the credibility of threats.
Human Rights Watch recommends that the VWU develop a range of such protective measures to be applied flexibly. As with the ICCPP, these lesser measures could continue to be sought through referral by the prosecution, the defense, or legal representatives, with a final decision made by the registrar. Given the limited nature of the measures, presumably decisions of the registrar could be made on an expedited basis.
The VWU has developed impressive programs of support, including extensive assistance to ensure the welfare of ICCPP participants. As the courts caseload continues to expand, however, the VWUs ability to meet the legitimate support needs of an increasing number of witnesses and victims will be taxed. Indeed, no support services have yet been made available to victims,606 potentially a far larger pool than witnesses alone, and Human Rights Watchs field research suggests that within the support services provided to ICCPP participants, psychological services are quite limited.607
Human Rights Watch recognizes that the VWU faces serious constraints particularly in delivering psychological support. It has limited staff in The Hague to develop programs, few field staff to implement measures, and operates in situation countries with limited existing psychological services. In addition, our research indicates that limited relevant VWU staff resources in the field may be directed toward providing daily living support to ICCPP participants rather than toward making use of their expertise in psychology.
At the same time, however, there are real and pressing psychological needs within affected communities. One NGO staff member in an ICC situation country where mental health awareness and services are limited told Human Rights Watch researchers that some victims suffering nightmares and recurrent thoughts, for example, assume that they must be going insane rather than experiencing common symptoms of post-traumatic stress disorder.608
Improving the courts programs of psychological support is a key opportunity to address these needs, meet the courts obligations under article 68(1), and by working through local partners, increase the long-term capacity of psychological services in ICC situation countries. We recommend that the Assembly of States Parties approves additional support staff within the VWU, including staff devoted to support of victims. Other institutional resources could also be marshaled in service of the courts support mandate in the longer term. Projects funded by the Trust Fund for Victims, for example, could help to develop local capacity and to attract other agencies to provide psychological services in areas where such services are few and far between.
As should be clear from the foregoing discussion, an effective program of witness and victim protection and support requires intensive investment in staff and other resources. Given the critical importance of protection and support to ensure the availability of witnesses and to provide a meaningful opportunity for victims participation, the Assembly of State Parties should ensure that adequate resources are provided in the courts budget. Particular attention should be paid to increasing staff levels within the VWU to address the protection and support needs of victims.
In addition, Human Rights Watch has consistently emphasized the importance of enhancing the presence of field-based protection staff as part of a broader strategy of court-wide field engagement (see generally Part IV, above). VWU staff in the field can be an important source of information for witnesses and victims, including explaining to individuals what protection is available from the court and the limits of that protection, to ensure informed consent as to participation in investigations and court proceedings. In addition, field-based staff would be essential to developing a more flexible and timely approach to protection. Human Rights Watch recommends that the VWU continue to actively seek to locate positions in the situation countries and that the Assembly of States Parties funds such positions accordingly.
494 The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Rome Statute of the International Criminal Court, A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 68(1) (Rome Statute). As discussed below, the Victims and Witnesses Unit of the Registry, the Office of the Prosecutor, and Chambers have specific protection or support responsibilities under other provisions of the court's statute, rules, and regulations.
495 For example, as discussed in Part II.C.1.c.iii, above, a loss of popular trust in the Ugandan police and the implication of the Ugandan army in human rights abuses complicates the ICCs use of national authorities in northern Uganda.
496 Human Rights Watch interview with ICC staff, May 1, 2007.
497 Rome Statute, art. 43(6).
498 Ibid., art. 68(4).
499 Ibid., art. 43(6); see also Rules of Procedure and Evidence, International Criminal Court, ICC-ASP/1/3, September 9, 2002, http://www.icc-cpi.int/library/about/officialjournal/Rules_of_Proc_and_Evid_070704-EN.pdf (accessed June 11, 2008), rules 16-19 (Rules of Procedure and Evidence); Regulations of the Registry, International Criminal Court, ICC-BD/03-01-06, revised September 25, 2006, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD_03-01-06_English.pdf (accessed June 11, 2008), regs. 79-96 (Regulations of the Registry).
500 Human Rights Watch group interviews with ICC staff, The Hague, November 22, 2007, and April 17, 2008, and email correspondence with ICC staff, June 27, 2008.
501 See, for example, Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Victims and Witnesses Units considerations on the system of witness protection and the practice of preventive relocation, June 12, 2008, para. 10 (VWU Considerations on Preventive Relocation); Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Protection of Victims and Mandate of the Victims and Witnesses Unit, December 12, 2007, para. 24 (Registry Filing on Victim Protection and VWU Mandate); Victims Rights Working Group, Protection and Support, http://www.vrwg.org/Protection_and_Support.html (accessed May 28, 2008).
502 REDRESS, Victims, perpetrators, or heroes? Child soldiers before the ICC, September 2006, http://www.redress.org/publications/childsoldiers.pdf (accessed June 2, 2008), pp. 35-36.
503 Human Rights Watch interview with OTP staff, The Hague, November 19, 2007, and email correspondence with OTP staff, June 27, 2008; see also Géraldine Mattioli, Ensuring the Safety of Victims and Witnesses: A Challenging but Critical Mission of the ICC, Bulletin, Victims Rights Working Group, October 2005, http://www.redress.org/ICCBull/ENG04.pdf (accessed June 12, 2008), p. 4.
504 See, for example, Registry Filing on Victim Protection and VWU Mandate, para. 23 (responsibilities undertaken by VWU include training of the actors who will be in contact with victims).
505 Such a system is contemplated in Registry regulation 95, which states, The Registry shall provide participants with round-the-clock telephone access for the purpose of initiating an application for protection or for any enquiry relating to the safety of witnesses, victims who appear before the Court or persons at risk of harm or death.
506 Human Rights Watch interview with ICC staff, May 1, 2007.
507 Human Rights Watch interview with ICC staff, The Hague, March 19, 2008.
508 Human Rights Watch interview with ICC staff, May 1, 2007.
509 See Part VI.C.2, below.
510 Regulations of the Registry, regs. 80, 96.
511 Ibid., reg. 96(4).
512 Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventative Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules (Public Redacted Version), April 25, 2008, para. 61 (Decision on Evidentiary Scope).
513 VWU Considerations on Preventive Relocation, para. 16.
514 Regulations of the Registry, reg. 93(2).
515 Under the Registrys regulations, the registrar may consider the involvement of the person before the Court, whether the person himself or herself, or his or her close relatives are endangered because of their involvement with the Court, and whether the person agrees to enter the protection programme. Ibid., reg. 96(3).
516Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on disclosure issues, responsibilities for protective measures and other procedural matters, April 24, 2008, paras. 38, 43, annex 2 to Decision issuing a confidential and a public redacted version of Decision on disclosure issues, responsibilities for protective measures and other procedural matters, May 8, 2008 (Decision on Disclosure Issues).
517 VWU Considerations on Preventive Relocation, para. 18.
518 See Part VI.C.2, below.
519 The need for states parties to conclude relocation agreements with the court is discussed below in Part VIII.C.3.
520 Human Rights Watch interview with ICC staff, May 1, 2007.
521 This would also further positive complementarity, as discussed in Part II.D, above.
522 We note that the VWU has recently indicated the existence of alternative risk management approach[es], see VWU Considerations on Preventive Relocation, para. 18, but it is not Human Rights Watchs information that any such alternative approaches have been implemented with regularity to date.
523 Rome Statute, art. 43(6); Regulations of the Registry, reg. 83.
524 Human Rights Watch group interview with ICC staff, The Hague, April 17, 2008, and email correspondence with ICC staff, June 27, 2008.
525 Regulations of the Registry, reg. 80.
526 Human Rights Watch group interview with ICC staff, The Hague, April 17, 2008.
528 Ibid. Our concerns regarding this approach are discussed below in Part VI.C.4.
529 See, for example, Regulations of the Registry, regs. 79 (general obligation to limit further trauma of witnesses); 81 (travel); 82 (accommodation); 83(2) (round-the-clock support); 89(1) (health care); 90 (dependent care); 91 (accompanying support person); 92 (security arrangements).
530 Human Rights Watch group interview with ICC staff, The Hague, April 17, 2008. See also Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Victims and Witnesses Unit recommendations on psycho-social in-court assistance, January 31, 2008, paras. 6-8 (VWU Recommendations on Psycho-Social Assistance). Aspects of the protocol are also described in Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision regarding the Protocol on the practices to be used to prepare witnesses for trial, May 23, 2008 (May 2008 Decision on Witness Preparation).
531 Human Rights Watch group interview with ICC staff, The Hague, April 17, 2008.
532 VWU Recommendations on Psycho-Social Assistance, para. 4.
533 Regulations of the Registry, reg. 91.
534 See Rules of Procedure and Evidence, rules 16-17; May 2008 Decision on Witness Preparation, paras. 38-44; Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, November 30, 2007, paras. 29-34 (November 2007 Decision on Witness Preparation and Familiarization); Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, November 8, 2006, paras. 18-27 (November 2006 Decision on Witness Proofing and Familiarization).
535 Regulations of the Court, International Criminal Court, ICC-BD/01-02-07, June 14 and November 14, 2007, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD-01-02-07-ENG.pdf (accessed June 11, 2008), reg. 41 (Court Regulations) (The Victim and Witnesses Unit may, pursuant to article 68, paragraph 4, draw a matter to the attention of a Chamber where protective or special measures under rules 87 and 88 require consideration.)
536 November 2007 Decision on Witness Preparation and Familiarization, para. 55. Trial Chamber I, like the pre-trial chamber before it, rejected the prosecutions argument that the prosecution ought to be able to engage in witness proofing, that is, substantive preparation of the witness for his or her testimony including discussing the content of the witnesss statement, but departed from the pre-trial chambers approach by permitting witnesses to be provided with copies of their statements. Ibid., paras. 35-52, 57; November 2006 Decision on Witness Proofing and Familiarization, paras. 28-42. Whether or not a witness is permitted to retain a copy of his or her statement will depend on whether the witness would be put at risk if the statement fell into the hands of a third party. May 2008 Decision on Witness Preparation, para. 34.
537 See Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on various issues related to witnesses testimony during trial, January 29, 2008, para. 39 (January 2008 Witness Testimony Decision); VWU Recommendations on Psycho-Social Assistance, paras. 9-10, 12-15.
538 VWU Recommendations on Psycho-Social Assistance, para. 10.
539 January 2008 Witness Testimony Decision, para. 36.
540 Rome Statute, art. 43(6).
541 Ibid., art. 68(1).
542 Rules of Procedure and Evidence, rules 87(1), 88(1).
543 Human Rights Watch interview with OTP staff, The Hague, November 7, 2007.
544 Ibid. Human Rights Watch notes that by sharing the investigative strategies and training it has developed with national authoritiesparticularly with regard to the investigation of crimes of sexual violencethe OTP could have an impact on the ability of those authorities to prosecute serious crimes within their own jurisdictions, extending the ICCs reach through positive complementarity.See Part II.D, above.
545 Human Rights Watch interview with OTP staff, The Hague, April 18, 2008.
547 Under article 42(9) of the Rome Statute, the Prosecutor shall appoint advisers with legal expertise on specific issues, including but not limited to, sexual and gender violence and violence against children.
548 Human Rights Watch interview with OTP staff, The Hague, April 18, 2008.
550 Human Rights Watch interview with OTP staff, The Hague, April 18, and email correspondence with OTP staff, June 27, 2008. For discussion of the joint teams approach, see Part II.C.1.a.ii, above.
551 Human Rights Watch interview with OTP staff, The Hague, April 18, 2008.
552 Ibid.; Human Rights Watch email correspondence with OTP staff, June 27, 2008.
553 OTP investigations are discussed in Part II.C.1, above.
554 Human Rights Watch interview with civil society representative, Gulu, March 5, 2007.
555 Human Rights Watch interview with OTP staff, The Hague, April 18, 2008.
556 See Part II.C.1.c.ii, above. For further discussion of the importance of a court-wide commitment to field engagement, see Part IV.A-B, above.
557 See Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Hearing Transcript, December 13, 2007, p. 5, lines 11-13 (December 13, 2007 Hearing Transcript); see also Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, November 9, 2007, para. 20 (While 11 witnesses were referred in good time to the Victims and Witnesses Unit, the process for the outstanding 24 witnesses was commenced significantly and unjustifiably late.)
558 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Hearing Transcript, October 1, 2007, p. 27, lines 15-25 (unofficial translation).
559 See Decision on Evidentiary Scope, paras. 60-61.
560 December 13, 2007 Hearing Transcript, p. 15, lines 2-4.
561 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision suspending deadline for final disclosure, January 30, 2008, paras. 1-4 (Decision Suspending Deadline for Final Disclosure).
562 See Part I.C.2, above.
563 Rules of Procedure and Evidence, rule 87.
564 Ibid., rule 88.
565 See January 2008 Witness Testimony Decision, para. 35.
566 See Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, May 13, 2008, para. 184 (granting same procedural rights to anonymous victims in Katanga and Ngudjolo confirmation hearing as enjoyed by anonymous victims in the Lubanga confirmation hearing); Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on victims participation, January 18, 2008, paras. 130-31 (Lubanga January 18, 2008 Victim Participations Decision); Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the Arrangements for Participation of Victims a/0001/06, a/0003/06 and a/0003/06 at the Confirmation Hearing, September 22, 2006, p. 6 (Lubanga Confirmation Hearing Victims Participation Arrangements Decision). For Pre-Trial Chamber I, anonymity came with restricted modalities of participation; for example, victims were not entitled to submit evidence during the confirmation of charges hearing in the Lubanga case. Lubanga Confirmation Hearing Victims Participation Arrangements Decision, pp. 7-8. Trial Chamber I removed any categorical limitations on the modalities of participation by anonymous victims, but stated that [w]hile the safety and security of victims is a central responsibility of the Court, their participation in the proceedings cannot be allowed to undermine the fundamental guarantee of a fair trial. The greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself. Lubanga January 18, 2008 Victims Participation Decision, para. 131. In addition, under Registry regulations, victim applications for participation are reviewed by the Registry on receipt to determine whether disclosure to the parties or other participants would create a security risk. The Registry reports its assessment to Chambers, and Chambers may take advice from the Registry on appropriate protective and support measures. Regulations of the Registry, regs. 99(1)-(3), 100(2). See Part I.C, above, and Part VI.B.3, above, for examples of protective measures that may be ordered by Chambers. For further discussion of victims participation in court proceedings, see Part VII, below.
567 See Rome Statute, arts. 61(3), 67(1)(a)-(b), 67(2); Rules of Procedure and Evidence, rules 76-84.
568 See Olympia Bekou, Pre-Trial Procedures Before the International Criminal Court, International Society for the Reform of Criminal Law, 2006 conference, http://www.isrcl.org/Papers/2006/Bekou.pdf (accessed June 4, 2008), pp. 4-5.
569 See, for example, Decision on Evidentiary Scope, paras. 84-138 (summaries to be used for witness statements for disclosure of prosecutors evidence and exculpatory or other material relevant to the defenses preparation); Prosecutor v. Katanga, Case No. 01/04-01/07, First Decision on the Prosecution Request for Authorisation to Redact Witness Statements (Public Redacted Version), December 7, 2007, para. 4 (outlining criteria for redactions derived from Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, December 14, 2006, and Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, December 14, 2006) (Katanga First Redaction Decision); Prosecutor v. Lubanga, ICC, Case No. 01/04-01/06, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, September 15, 2006, pp. 7-11 (deciding prosecutor must seek authorization for use of summary evidence to rely on witnesses for whom, in the pre-trial chambers judgment, redactions would be insufficient for their protection and they have not consented to disclosure of their identities); Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, December 14, 2006, paras. 40-51 (rejecting interpretation of Rule 81(4) which would require disclosure of witness identity prior to use of summary evidence in confirmation of charges hearings); Prosecutor v. Lubanga, ICC, Case No. 01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute, May 19, 2006, pp. 22-23 (redactions and non-disclosure of witness identity pursuant to rule 81(4) require pre-trial chambers authorization). In advance of the Lubanga trial, Trial Chamber I has required its authorization to lift those redactions imposed previously by the pre-trial chamber under rule 81(4). Prosecutor v. Lubanga, ICC, Case No. 01/04-01/06, Hearing Transcript, December 4, 2007, p. 23, lines 12-20.
570 Prosecutor v. Katanga, ICC, Case No. 01/04-01/07, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled First Decision on the Prosecution Request for Authorisation to Redact Witness Statements, May 13, 2008, paras. 36-73, 89-108, reviewing in part, Katanga First Redaction Decision.
571 Prosecutor v. Lubanga, ICC, Case No. 01/04-01/06, Corrigendum to Decision on the defence request for leave to appeal the Oral Decision on redactions and disclosure of 18 January 2008, March 6, 2008, pp. 6-8.
572 See Decision Suspending Deadline for Final Disclosure, paras. 3-4 (Lubanga trial); December 13 Hearing Transcript, p. 15, lines 13-19 (permitting interim redacted statements or summaries to be served for witnesses awaiting outcome of VWU assessment); Prosecutor v. Katanga, ICC, Case No. 01/04-01/07, Decision on the Suspension of the Time-Limits Leading to the Initiation of the Confirmation Hearing, January 30, 2008, pp. 5-9 (pending requests for redactions, determination of which turned on outstanding requests to the VWU for protective measures, one of many factors for postponement of confirmation hearing).
573 Rome Statute, art. 70(1)(c).
574 Registry Filing on Victim Protection and VWU Mandate, para. 18. The Registry, however, noting that the courts mandate for victim protection and support is broader than that of the VWU, indicated that the VWU would be prepared to take an advisory role to the court on protection of victim applicants. In addition, it was prepared to train the actors who will be in contact with the victims and implement protection measures for victims as ordered by the court or where court personnel or a party or other participant to the proceedings has endangered the life of a victim. Ibid., paras. 20-24, 26.
575 Lubanga January 18, 2008 Victims Participation Decision, paras. 136-37.
576 Human Rights Watch group interview with ICC staff, The Hague, March 18, 2008.
577 For discussion of victims participation at the court, see Part VII, below.
578 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, Bunia, May 5 and 7, 2007.
579 Lubanga January 18, 2008 Victims Participation Decision, para. 137.
580 Decision on Disclosure Issues, para. 43.
581 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Prosecutions Submission of Information on the 29 February 2008 Disclosure of Incriminatory Evidence and Request for Protection, March 7, 2008, para. 12 (Prosecution February 2008 Request for Protection).
582 Decision on Evidentiary Scope, para. 13(iii); see also Prosecution February 2008 Request for Protection, paras. 4-6 (In accordance with [Rome Statute, articles 43(6) and 68(1)], the Prosecution relies on the VWU to implement the measures required for the protection of its witness. The Prosecution assesses and defines the need for protection of each of its witnesses. The Prosecution submits that the mandate and the responsibility to implement protective measures lie with VWU.) (internal citation omitted).
583 See, for example, Decision on Evidentiary Scope, p. 6 (listing in the procedural history the Prosecutions Request for an Issuance of an Order to Protect Witnesses 238 and 163); Prosecution February 2008 Request for Protection, para. 7 (the Prosecution respectfully requests that the Trial Chamber order the VWU to protect the eight witnesses whose identity has now been disclosed.).
584 Decision on Evidentiary Scope, paras. 2, 15. Human Rights Watch understands it is likely that other relocations have taken place.
585 Decision on Disclosure Issues, paras. 77-79.
586 Ibid., paras. 41-52. In so doing, the pre-trial chamber invoked its powers under Rome Statute article 57(3)(c). Ibid., para. 52. The pre-trial chamber had previously requested the VWU to reconsider its denial of protective measures for the witness, making findings as to the seriousness of the threats faced by the witness. Ibid., paras. 41-42. The pre-trial chamber concluded that the registrarin rejecting for a second time the application for protective measuresdeparted from the criteria that the Registrar himself has established to assess whether requests for inclusion in the ICCPP should be granted, ibid., para. 44, and completely disregard[ed] the findings of the Single Judge on the seriousness of the threats received by Witness 238, ibid., para. 51. The pre-trial chamber considered that the Registrys behavior in this respect has created a serious risk for the witnesss safety and has also created a further delay in the proceedings in the present case. Ibid., para. 51.
587 Decision on Evidentiary Scope, para. 22(iii).
588 Ibid., para. 27.
589 Ibid., para. 32.
590 Ibid., p. 54. The pre-trial chamber granted the prosecution leave to appeal its decision. Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on the Requests for leave to appeal the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules (Public Redacted Version), May 20, 2008.
591 Prosecution February 2008 Request for Protection, p. 2, note 4.
592 Decision on Evidentiary Scope, para. 34.
593Ibid., para. 39.
594 Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on Prosecution's Urgent Application for the Admission of the Evidence of Witnesses 132 and 287, May 28, 2008, pp. 5-6 (Decision on Prosecutions Urgent Application).
595 Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Prosecution's Submission of the Document Containing the Charges and List of Evidence, April 21, 2008, p. 3 (Submission of Charges Document and Evidence List).
596 Decision on Prosecutions Urgent Application, pp. 6-8.
597 VWU Considerations on Preventive Relocation, paras. 39-42.
598 See Part II.C.2.b, above.
599 Decision on Disclosure Issues, para. 80.
600 See, for example, Decision on Disclosure Issues, para. 82 (The decisions of the Registrar on protective measures will only be struck down either if it has applied an incorrect approach (for example, the wrong criteria) or if the Victims and Witnesses Unit has arrived at a conclusion which, on an assessment of the facts, is plainly wrong.). As indicated above, Pre-Trial Chamber I ordered the VWU to protect a witness, reversing the VWUs determination.
601 Decision on Evidentiary Scope, para. 36.
603 See VWU Considerations on Preventive Relocation, para. 16.
604 See Decision on Disclosure Issues, para. 80 (noting that unspecified [b]udgetary difficulties appear to have driven this disagreement [between the OTP and the Registry]).
605 VWU Considerations on Preventive Relocation, para. 22.
606 Human Rights Watch group interview with ICC staff, The Hague, April 17, 2008.
607 Human Rights Watch interview with ICC staff, July 17, 2007.
608 Human Rights Watch interview with representative of international nongovernmental organization, Bunia, May 3, 2007.