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V. Witness Protection

Effective protection and support for witnesses and others at risk due to testimony provided during trials at the Special Court is an essential aspect of court operations. Adequate arrangements must be made to protect the physical and mental well-being of these individuals, many of whom are victims of serious crimes committed during the conflict.⁷⁷ This is necessary to avoid re-traumatization or an otherwise negative experience, one effect of which could be to create a disincentive for witnesses to testify.

Due to being located in Sierra Leone, the Special Court faces substantial and distinct challenges to ensuring protection and support.⁷⁸ Sierra Leone is a small country without prior experience with witness protection. The accessibility of the court to the general population and the nature of close-knit communities that exist in Sierra Leone may make witnesses more vulnerable to being identified than if the court were located outside the country where the crimes occurred. While witness identity is withheld from the public and witnesses testify behind a screen unless they request otherwise, witnesses may be recognizable by the substance of their testimony. Additionally, not all witnesses address the court through voice distortion equipment, so may be recognizable by their voices.⁷⁹ 

Some defense counsel have argued that the level of protection provided is excessive and that testifying without their identity being shielded from the public is more likely to encourage truthful testimony from witnesses.⁸⁰ However, the serious risks witnesses and others may face due to testimony provided make intensive protection and support vital. Additionally, the importance of arrangements for long-term protection and support, including after the court completes trials and operations in Sierra Leone, cannot be overstated. The Special Court’s success will be highly dependent not only on its ability to render immediate protection and support to witnesses and others at risk on account of testimony provided, but also on its efforts to help ensure their safety and well-being in the long term.

A. A Comprehensive Scheme of Protection and Support

Ensuring the physical and mental well-being of witnesses and others at risk due to testimony provided is an enormously difficult challenge. Moreover, there are limits to what any court can do to guarantee the well-being of these individuals. Given the serious constraints, the Special Court is actively implementing its witness protection and support scheme with what appears to be a high degree of success. From in-depth discussions with staff based in various sections of the Special Court, it is clear that a comprehensive scheme of protection and support for witnesses is provided during the trial phase.

There are extensive procedures in place to protect witness identity and to ensure against threats to witnesses. All witnesses at a minimum receive protection through the use of pseudonyms to prevent their identity from being revealed to the public unless the witness otherwise requests.

The Witness and Victim Support Unit in the Registry, along with the Witness Management Unit in the OTP, provide witnesses with a range of crucial services.

Most witnesses are provided care and security at safe houses in Freetown from the moment their identity is disclosed to the defense, or earlier where a witness expresses concern for his or her safety.⁸¹ At any given time, several dozen witnesses and their dependents are estimated to be receiving such care and assistance. In order to house such witnesses and ensure appropriate separation of particular groups, such as victims, children, insider witnesses, and victims of gender based violence, the Witness and Victim Support Unit maintains a number of different facilities that have constant security protection.⁸²

Witnesses who are deemed to face security threats and are expected to provide particularly important testimony receive longer-term care and security throughout the course of the trial. These witnesses are housed at some two dozen safe houses around Freetown.⁸³ A number of witnesses have also been relocated abroad, within the region and to a lesser extent further a field. Other witnesses have been relocated inside Sierra Leone.⁸⁴

Prosecution witnesses who live outside Freetown are transported to the capital by the OTP Witness Management Unit, which also conducts substantial coordination of support and protection for such witnesses prior to this time. As the Defence Office does not have a witness management unit, plans are being developed for transporting defense witnesses to Freetown.⁸⁵

While in Freetown, witnesses receive a variety of other important services that properly help to ensure their well-being. Specifically, they receive medical assistance and access to psychosocial counseling. They also receive a briefing on courtroom procedure in which witnesses have the opportunity to see the courtroom, and examination is simulated. Staff of the Witness and Victim Support Unit also assess the state of witnesses and, where necessary, advise the OTP against calling a witness if it appears that doing so would too adversely affect the individual.⁸⁶ Employing Sierra Leoneans in the section to work closely with witnesses also helps to enhance the section’s ability to give relevant support.⁸⁷ 

Protection and support is actively provided in the courtroom. As noted above, witness identity is protected through a range of methods, including voice distortion, testifying behind a screen, and redaction of all identifying information from the record.⁸⁸ The Witness and Victim Support Unit further reviews all transcripts to ensure that any disclosure of identifying information concerning witnesses is properly identified and removed from the record and any related audio or video tape.⁸⁹ A psychosocial counselor is also generally present in the courtroom. This counselor provides support and comfort to witnesses by sitting in the direct sight of the witness or, in some cases, next to the witness.⁹⁰ 

Despite the protection and support efforts by the court, instances of threats against witnesses have occurred. In some cases, this has consisted of generalized calls in public meetings against any individual who testifies at the Special Court.⁹¹ In other instances, Human Rights Watch was told that particular witnesses have been singled out and subjected to verbal intimidation, searched for in their villages, or subject to more serious threats.⁹² Where threats have been made against individual witnesses, it is suspected that information about the identity of the witness was leaked by the accused or part of his defense team.⁹³ 

In one instance, a protected witness was verbally threatened on the grounds of the Special Court complex. Relatives of two accused yelled the name of the witness at a court vehicle with tinted windows in which the witness was being transported, that they knew she was in the vehicle, and a threatening phrase in Krio concerning her testimony.⁹⁴ Additionally, there are instances of witnesses who had been relocated out of the country being telephoned directly by indictees. In such cases, it is suspected that the witness may have disclosed contact details to persons who then leaked the information to indictees.⁹⁵

The court has actively responded to such threats. The court has worked with local police to try to curtail generalized threats against individuals who testify at the Special Court. Where witnesses are individually targeted, Witness and Victim Support Unit staff have assured the person’s immediate safety by involving the local police, sending court staff to the witness, or advising the witness to leave the area as appropriate. The unit then investigates the incident, assesses the security situation, and relocates the witness when necessary.⁹⁶ The court also reportedly has responded to threats where appropriate by suspending privileges of detainees.⁹⁷

In response to the threat made on court premises, the defense investigator for one of the accused who was suspected of disclosing the witness’ identity was promptly suspended. The women who threatened the witness were also prohibited from observing proceedings. An independent investigator was then appointed to investigate the incident and produce a report, which led to the initiation of contempt proceedings against the defense investigator and the four women.⁹⁸ At the time of writing, a decision on the contempt proceedings is pending.⁹⁹  

Efforts to avoid contact between protected witnesses and observers of court proceedings should be intensified. It is largely unavoidable that some witness protection vehicles – despite efforts to disguise them – will be recognizable by people such as relatives of the accused who regularly attend proceedings. Moreover, keeping vehicles transporting witnesses completely out of sight remains difficult, as people are constantly moving around the court premises. Human Rights Watch was told that staff generally make an effort to ensure that the path of transport is clear.¹⁰⁰ However, given the risk of threat, extra care to wait until a clear path exists before transporting witnesses is necessary. Otherwise, an alternate route to transport witnesses to and from the court should be constructed.

In cases where threats are made off court premises, the court may do well to consider strengthening its action against persons suspected of making the threats or of leaking the identity of a witness. Such action could include working with the local authorities to pursue prosecution in the national courts under any relevant domestic offenses, the development of a domestic witness protection law, or pursuing additional contempt proceedings at the Special Court.¹⁰¹

B. Post-Testimony Follow Up

Follow up after a witness testifies is crucial for adequate assessment of risks to their physical and mental well-being following testimony. However, such follow up can be a difficult task, particularly where resources are scarce.

The Special Court has developed important procedures to return witnesses home and assess their condition after they testify. The Witness and Victim Support Unit works to ensure safe travel home for witnesses at an appropriate juncture. The Witness and Victim Support Unit transports witnesses to their villages, and witnesses are provided with telephone numbers to contact if they have a problem upon return. The unit also notifies the Sierra Leone police in the area about the witness to maximize safety upon return if the witness is concerned. The length of time before witnesses return home varies from immediately to one month after testifying. The decision to travel home is made with due consideration for when the witness feels ready to return.¹⁰² 

The Witness and Victim Support Unit intends to conduct at least one follow-up visit to each witness once he or she has returned home, to evaluate his or her condition; psychosocial support and security personnel participate in these visits. However, as of July 2005, only approximately half the witnesses who had testified had received a follow-up visit by the unit. This is reportedly due in part to the psychosocial counselors on staff being limited in number and committed also to providing support to witnesses testifying in Freetown. It is also due to the logistical difficulty of traveling to the location of each witness.¹⁰³ 

Human Rights Watch was told by one court official that the Witness Management Unit also contacts witnesses after they testify through phone calls where possible and visits around the country. Human Rights Watch was told that there is coordination between the Witness Management Unit and the Witness and Victim Support Unit on follow-up, but there was a mutual lack of knowledge as to services the other provided.¹⁰⁴ 

Cognizant of the challenges, Human Rights Watch believes that an intensification of efforts to ensure that all witnesses receive a follow-up visit soon after they return home after testifying is needed. To achieve this, Human Rights Watch suggests that the Registry hold meetings with the Witness and Victim Support Unit to evaluate needs; if additional staff are necessary to conduct such visits given ongoing responsibilities in Freetown, the registrar might redeploy funds to ensure adequate staffing for this purpose.

C. Planning for Long-Term Protection

Protecting and supporting witnesses and others at risk due to testimony provided in the long-term after the court has ceased operations in Sierra Leone poses especially intense challenges. Long-term protection and support by a short-term court operating on a limited budget can appear by its nature contradictory. Ongoing concerns about the capacity of the domestic authorities to ensure long-term protection and support, and the lack of a prior practice with witness protection in Sierra Leone, magnify the difficulties.¹⁰⁵ 

At the same time, the Special Court has a responsibility to help ensure witness protection and support long term to fully achieve its mandate and to avoid leaving vulnerable witnesses and others at risk due to testimony provided. While the major part of the responsibility for ensuring long-term protection and support will largely fall to domestic authorities in Sierra Leone, the court must also put in place infrastructure to support these efforts.

The Special Court, including within the Witness Management Unit and the Witness and Victim Support Unit, has shown an interest in addressing long-term protection and support of witnesses and others at risk due to testimony provided.¹⁰⁶ The court’s current completion strategy document properly recognizes the role of the court in ensuring long-term protection of witnesses, stating that the court will continue “certain ‘residual activities’ after it no longer exists in its current form and capacity,” including “the continued provision of support and protection to witnesses.”¹⁰⁷ Court staff similarly told Human Rights Watch that witness protection is envisioned as part of the court’s “residual activities.”¹⁰⁸

Plans concerning services that will be provided by the court to ensure long-term protection after the court ends operations appear to remain vague at this point, apart from including maintenance of support to witnesses who are relocated out of the country.¹⁰⁹ Human Rights Watch believes that domestic protection efforts will need to be complemented by at least a small number of residual court staff with responsibilities to provide oversight of these efforts to ensure adequate long-term protection and support. Human Rights Watch urges for such provisions to be included as the court further develops plans for its “residual activities.”

The Special Court has also supported the creation of a domestic protection unit to operate after the court closes down; the Witness Management Unit has been taking the lead on this initiative and it is reportedly being developed as follows: the unit is expected to be run by senior Sierra Leonean police who currently work in the Witness Management Unit; a training took place in April 2005 for fifty Sierra Leone police who were drawn from districts where a number of the witnesses are concentrated, and included Sierra Leone police who currently work in the Witness Management Unit who also receive ongoing informal training; and the domestic protection unit is expected to be operational by December 2005 with plans to adopt full responsibilities by July 2006, thereby ensuring that there is overlap between the functioning of this unit and the court’s operations.¹¹⁰

However, despite a roundtable that exists between the Witness and Victim Support Unit and the Witness Management Unit, it was also apparent that not all relevant staff in the Witness and Victim Support Unit were involved in or even briefed on the development of this domestic unit. This is not entirely surprising given certain tensions and coordination difficulties that have existed between the Witness and Victim Support Unit and the OTP Witness Management Unit. Some staff also contradicted information that concrete steps to take forward the idea to create a domestic protection unit have been taken.¹¹¹

Human Rights Watch believes that the Special Court should help ensure that the domestic protection unit has the capacity and expertise to respond effectively to threats to the well-being of witnesses and others at risk due to testimony provided. To achieve this, appropriate input and expertise should be sought from all relevant staff in the development of this initiative, including in the Witness and Victim Support Unit. In this regard, Human Rights Watch recommends that the Registry consider creating a task force of relevant staff to oversee the development of this initiative, and that the Witness Management Unit brief relevant staff on developments to date. (Detailed recommendations for aspects to be included in the development of the domestic protection are given in Section VII, below.)