Are ICC Operational Protective Measures Available to Witnesses Effective?

The ICC presents a unique system of victim and witness protection.  Witnesses may testify before the court to provide facts and overviews, or may testify as victims, insiders and experts. Rule 87 (protective measures) and Rule 88 (special measures) RPE, allow the Court to apply operational protective measures where the life of a witness or those around them is endangered. These measures are as follows: the Initial Response System (IRS), an emergency reallocation system and the International Criminal Court Protection Programme (ICCP), a voluntary relocation service carried out by states parties of the ICC. Witness relocation is handled by the Victims and Witnesses Section (VWS) under the Division of External Operations (DEO) of the Registry. Aside from providing relocation and protection services to witnesses, the VWS also provide psychological support to victims who require support and familiarisation with Court procedures.

The allocated 2021 ICC budget has decreased by 0.7%, raising concern over whether the IRS and ICCP will be able to operate effectively.  The true effectiveness of witness protection programmes are already debatable, given cases such as Bemba where witnesses were bribed to provide false testimonies in trial, making absolute witness protection before trial questionable.  Additionally, the increased withdrawal of African state parties from the ICC further threatens the performance of operational protection measures such as the ICCP. 

The effectiveness of the IRS and ICCP have received little evaluation from the ICC. Therefore, it becomes necessary to examine the effectiveness of the IRS and ICCP to determine the extent their performance will be impacted considering the ICC budget cuts in 2021. This will be considered in two parts.  

Initial Response System (IRS) 

The IRS is a 24/7 emergency response system, providing immediate relocation of witnesses who are, or have the fear of being targeted. The ‘emergency hotline’ activates a network of local actors who then extract the witness to a safe location. The identity of the witness is kept anonymous. Through IRS, a safe environment is created, which reassures the witness in providing testimony. However, the  IRS function relies on strong geographic networks containing multiple witnesses. Therefore, networks may be weaker where there are fewer witnesses in a geographical location.

IRS solely contain basic protocols envisaging relocating the witness to a safe location.  Therefore, in more complex situations, protection for the family of a witness may be ineffective. As a result, a witness may revoke their testimony where the safety of their family is uncertain. Hypothetically,  the increased 2019 ICC budget allocated to judicial, prosecutorial and investigatory activities (46.5%) may have provided further resources for the IRS to improve its networks and overall performance, possibly to extend protection the family of a witness. However, the exact fund and resource allocation to the IRS is unclear, thus it difficult to determine its performance and overall effectiveness.

As prior mentioned, the allocated ICC 2021 budget has decreased by 0.7%, presenting a concern over the resources that will be allocated to IRS to ensure the protection of witnesses. While the DEO currently has 193 staff within its offices and an allocated budget of 22,986.60 euros for resources, it is uncertain whether a budget cut would greatly impact the functioning of the Victims and Witnesses Section. Given the current “11 situations” (mainly within Africa) open for OTP investigation, which require co-operation from the VWS regarding witness protection, there may be delays in the availability of this protection. An increased workload from the IRS from monitoring and assessing conditions for witnesses not only increases the caseload for the VWS but prolongs the consideration of applications for IRS by months.  Therefore, witnesses who need immediate protection, psychological support or familiarisation with the Court procedures may find themselves with inadequate support. 

International Criminal Court Protection Programme (ICCP)

The ICCP is a voluntary procedure which relocates witnesses and their families who are at risk or being threatened.  Rule 16 (4) RPE states that “agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential”.  A careful, independent evaluation and assessment of the information is carried out by the VWS concerning the risk faced by the witness and their family members (Prosecutor v Bemba, Para 25). Applications can be made by the Prosecutor to the ICC’s Registry (reg. 96 (2)), whom considers the involvement of the witness in the case at hand and whether they and their family members are in danger (reg. 96 (3)).  In terms of the communication between Court Organs “both the OTP and the Registry have made a dedicated effort to consult each other as early as possible on the situation of individual witnesses [and] The OTP has committed itself to share much earlier the scope of its investigations with the VWU” (Eikel, 2012). 

The ICCP presents an effective means of witness protection as both the witness and their family are afforded protection. Therefore, witness can present evidence against the defendant without fear or uncertainty over the safety of their family or themselves. However, this is a procedure of “last resort” (Arbia, 2010). Therefore, the process of obtaining such relief, especially where there are few areas available for relocation can be a frustrating, time consuming and futile process for the witness (Eikel, 2012).

Currently, a growing number of  African countries wish to withdraw from the ICC.  Article 86 of the ICC  envisages that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”.  The ICC greatly relies on state co-operation to relocate and protect witnesses through the ICCP framework. As power brokers in witness protection,  the recent African hostility towards the ICC threatens the ICCP framework and witness security as protection for witnesses in these jurisdictions may be revoked. Consequently, the DEO faces a herculean challenge of the possible relocation 575 witnesses in Africa, during a global pandemic where options of relocation are limited. While negotiation is possible to draft ICCP agreements with withdrawing African states, this will take time to complete and presents a time of uncertainty for the protection of witnesses in these areas. The current fragility of the ICCP framework may cause witnesses to no longer wish to participate in trials.  Therefore, the effectiveness of the ICCP framework may deteriorate through 2020. 

Conclusion

On the surface, the operational protective measures used to protect witnesses are effective. However, this effectiveness becomes questionable where there is a lack of state co-operation or budget allocation. It becomes evident that the effectiveness and strength of operational protective measures is only as strong as the weakest link. As there is no information provided from the ICC on the effectiveness of the IRS and ICCP, we have to draw our own conclusions on the effectiveness of witness protection. As can be seen from cases such as Bemba, Ruto and Sang, Lubanga etc. where threats to witness security and interference occurred despite these procedures, the effectiveness of IRS and ICCP is sadly ambiguous.

Moreover, when we set these points against the backdrop of the COVID 19 pandemic, the ability of States to not only co-operate with the ICC but to also contribute resources is not only strenuous but concerning. Whilst the 2021 ICC budget cut is not significant, it does envisage that some areas, which may include operational protection such as the IRS and ICCP may have to operate residually, further questions the quality of the performance of both protective measures in future cases.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s