Journal of International Criminal Justice Advance Access originally published online on July 29, 2005
Journal of International Criminal Justice 2005 3(4):962-976; doi:10.1093/jicj/mqi058
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III. Appraising the Role of the ICTR |
The ICTR and the Protection of Witnesses
* Senior Lecturer (International) Criminal Law, University of Amsterdam and member of the editorial committee of this Journal. [g.k.sluiter{at}uva.nl]
The protection of witnesses occupies a prominent place in 10 years of practice of the International Criminal Tribunal for Rwanda (ICTR). This paper sketches certain elements of the ICTR law on this matter. Among other things, it demonstrates that this law is flexible and has resulted in the provision of protective measures as a matter of routine, without much regard for the principles of public trial. It is furthermore critical as to the practical effect of protective measures, arguing that enforcement mechanisms in the form of contempt procedures are highly unattractive, and the continuing expansion of protective measures is undesirable from the perspective of the rights of the accused. A final point of criticism addressed in this paper concerns the apparent lack of interest of the ICTR in the protection of a particular category of witnesses, namely witnesses detained in Rwanda.
1 Art. 19 provides: ‘The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’ According to Art. 21: ‘The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity.’
2 See Rules 34, 69 and 75, which deal explicitly with the protection of witnesses. However, in the application of other Rules, the protection of witnesses may be an important element as well. An example in this respect is Rule 66, obliging the Prosecutor to disclose materials to the defence, but the application of which is made subject, inter alia, to the provisions of Rule 69. The latter Rule makes it possible to apply for non-disclosure of witness identities to the defence, for a certain period of time.
3 I gladly refer to other writings on this important matter. A comprehensive and comparative overview, including the ICTY, ICTR and ICC, has been offered by J.R.W.D. Jones, ‘Protection of Victims and Witnesses’, in A. Cassese and others (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 1355–1370; V. Morris and M.P. Scharf, The International Criminal Tribunal for Rwanda (Irvington-on-Hudson, New York: Transnational Publ, 1998) 535–543. See also, as a selection: M.-B. Dembour and E. Haslam, ‘Silencing Hearings? Victim-witnesses at War Crimes Trials’, 15 European Journal of International Law (2004) 151–177; T.K. Kuhner, ‘The Status of Victims in the Enforcement of International Criminal Law’, 6 Oregon Review of International Law (2004) 95–152; M. Othman, ‘The Protection of Refugee Witnesses by the International Criminal Tribunal for Rwanda’, 14 International Journal of Refugee Law (2002) 495–508. The specific issue of anonymous witnesses, as a protective measure, has been addressed, inter alia, by M. Leigh, ‘The Yugoslav Tribunal: Use of Unnamed Witnesses Against the Accused’, 90 American Journal of International Law (1996) 235–238.
4 The atrocities in the former Yugoslavia and Rwanda have not been meticulously documented. This is in contrast to the prosecution of war criminals by the Nuremberg Tribunal after the Second World War, which was very much a documented-based prosecution, due to the overwhelming quality, quantity and nature of records kept by the Germans. The documents presented as evidence in Nuremberg and Tokyo were particularly useful in establishing the guilt of political and military leaders who ordered rather than directly carried out crimes. The ad hoc Tribunals, on the other hand, are also trying a number of cases dealing with subordinates who actually perpetrated the alleged crimes themselves. In such a situation, the evidence is more likely to come from eyewitnesses than from documents. See R. May and M. Wierda, ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha’, 37 Columbia Journal of Transnational Law (1999) 725–765, at 744.
5 See Judgement, Aleksovski (IT-95–14/1-A), Appeals Chamber, 24 March 2000, 
62–64.
6 The ICTR Rules still contain the aspiration of Rule 90(A): ‘Witnesses shall, in principle, be heard directly by the Chambers ... .’ This aspiration was deleted in the ICTY Rules in December 2000; no explicit explanation for this is provided, but it may have had to do with the intention on the part of the Judges to restrict lengthy witness appearances in the courtroom.
7 The victims’ desire for criminal prosecution of the perpetrator has been confirmed by empirical studies; see Kuhner, supra note 3, at 135. It has been submitted that victims may desire specifically criminal prosecution for three reasons: accountability, retribution and equal treatment. See R. Aldana-Pindell, ‘In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes’, 35 Vanderbilt Journal of Transnational Law (2002) 1399–1501, at 1443–1457.
8 Morris pointed out, in this respect, that the number and character of prosecutions undertaken by the ICTR were insufficient to satisfy the victim population: M. Morris, ‘Complementarity and Its Discontents: States, Victims and the International Criminal Court’, in D. Shelton (ed.), International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley, New York: Transnational Publishers, 2000), at 191.
9 For example, in Tadi
, the ICTY Trial Chamber paid considerable attention to and acknowledged the retraumatization of victims and witnesses in cases of sexual assault: Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Tadi (IT-94–1-T), Trial Chamber II, 10 August 1995, 45–52.
10 UN High Commissioner for Human Rights Field Operation in Rwanda, Killings and Other Attacks Against Genocide Survivors and Persons Associated With Them From January Through December 1996, Status Report as at 24 January 1997, UN doc. HRFOR/STRPT/33/24 Jan. 1997/E, as cited in Morris and Scharf, supra note 2, at 535.
11 See Second Annual Report of the ICTR, UN doc. A/52/582 and UN doc. S/1997/868, 2 December 1997, 51.
12 On this category, which will not be further addressed in this article, see F. Hampson, ‘The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness’, 47 International and Comparative Law Quarterly (1998) 62–72.
13 R. Elias, The Politics of Victimization: Victims, Victimology, and Human Rights (New Brunswick: Transaction Books, 1986), at 217.
14 Illustrative of this recognition is the statement by former ICTY Prosecutor Niemann: ‘Another problem that we face are witnesses who have changed their minds after having spoken to us and providing us with their statements ... [I]ndeed it is perfectly understandable’: G.R. Niemann, ‘Aspects of Investigation and Prosecution’, 99 Militair Rechtelijk Tijdschrift (1996), at 103. See also one of the guiding principles of the Victims and Witnesses Unit: to respect, as much as possible, witnesses’ freedom to make their own decisions; Third Annual Report of the ICTY, UN doc. A/51/292 and UN doc. S/1996/665, 16 August 1996, at 32.
15 In more detail, G. Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Antwerp: Intersentia, 2002) 253–268.
17 Decision on the Motion to Subpoena a Witness, Akayesu (ICTR-96–4-T), Trial Chamber I, 19 November 1997.
18 For a more detailed overview and discussion, see A. Beijer, Bedreigde getuigen in het strafproces (Threatened Witnesses in Criminal Proceedings) (Deventer: Gouda Quint, 1997), at 312–316.
19 This means expunging the name and address of the witness from the trial records, as well as giving the witness a pseudonym, where appropriate.
20 Decision on the Preliminary Motion submitted by the Prosecutor for Protective Measures for Witnesses, Rutaganda (ICTR-96–3-T), Trial Chamber I, 26 September 1996. The decision referred to is Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Tadi (IT-94–1-T), Trial Chamber II, 10 August 1995.
21 Decision on the Preliminary Motion submitted by the Prosecutor for Protective Measures for Witnesses, Akayesu (ICTR-96–4-T), Trial Chamber I, 27 September 1996. In this decision, no reference was made to ICTY case law directly, but only to the previous decision in Rutaganda.
22 Decision on the Defence Motion for Protective Measures for Witnesses, Nteziryayo (ICTR-97–29-T), Trial Chamber II, 18 September 2001, 6.
23 Decision on Protective Measures for Defense Witnesses, Rutaganda (ICTR-96–3-T), Trial Chamber I, 9, confirmed in, inter alia, Decision on Arsène Shalom Ntahobali's Motion for Protective Measures for Defence Witnesses, Nyiramasuhuko and Ntahobali (ICTR-97–21-T), Trial Chamber II, 3 April 2001.
24 Nyiramasuhuko and Ntahobali, supra note 23, 11. Moreover, this volatile security situation has existed through the entire period in which it has been operative. See Decision on Defence Request for Protection of Witnesses, Simba (ICTR-01–76-I), Trial Chamber I, 25 August 2004, 6.
25 Decision on Jean de Dieu Kamuhanda's Motion for Protective Measures for Defense Witnesses, Kamuhanda (ICTR-99–54-T), Trial Chamber II, 22 March 2001, 16.
26 Simba, supra note 24, 6. See also Decision on Juvénal Kajelijeli's Motion for Protective Measures for Defense Witnesses, Kajelijeli (ICTR-98–44A-T), Trial Chamber II, 3 April 2001, 16.
27 Kajelijeli, supra note 26, 1.
29 Cf. the language used in one ‘protective measures’ decision: ‘... the Registrar should make the necessary contact and negotiate with the relevant States on matters concerning the protection of defence witnesses’: Decision on the Defence Motion for the Protection of Witnesses, Bagambiki, Imanishimwe and Munyakazi (ICTR-97–36-T), Trial Chamber II, 1 October 1998.
30 See Decision on the Defence Motion for Additional Protective Measures for Defence Witnesses, Ntagerura (ICTR-96–10-I), Trial Chamber III, 4 February 2000, 2 and 3.
31 Decision on the Motion for the Protection of Defence Witnesses, Kayishema and Ruzindana (ICTR-95–1-T), Trial Chamber II, 6 October 1997.
33 Ibid., at 5. This is contrary to the ICTY case law, which in Tadi, used Rule 54 as a basis for ordering safe conduct measures; see Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link, Tadi (IT-94–1-T), Trial Chamber II, 25 June 1996.
34 Kayishema and Ruzindana, supra note 31, at 5. See also Decision on the Defence Motion for the Protection of Witnesses, Bagambiki, Iminishimwe and Munyakazi (ICTR-97–36-T), Trial Chamber II, 1 October 1998, at 3.
35 Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-link, Tadi (IT-94–1-T), Trial Chamber II, 25 June 1996, 12.
36 See G. Sluiter, ‘The ICTY and Offences against the Administration of Justice’, 2 Journal of International Criminal Justice (2004), 631–641.
37 The common-law approach to contempt proceedings — summary proceedings, without a detailed indictment — has caused misunderstandings and has given rise to critical remarks from a human rights perspective (ibid.).
38 Decision on the Prosecutor's Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor's Counsel, Nyiramasuhuko and others (ICTR-97–21-T), Trial Chamber II, 10 July 2001.
40 Ibid., 7. The Chamber adopted the ICTY standard, according to which the Prosecutor is expected to formulate at an early stage the nature of the charge with the precision expected of an indictment.
41 Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, Gbao (SCSL-2003–09-PT), Judge Boutet, 10 October 2003.
42 Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, Bagosora and others (ICTR-98–41-I), Trial Chamber III, 5 December 2001, 22.
43 The current version of Rule 69(C) reads as follows: ‘Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by Trial Chamber to allow adequate time for preparation of the Prosecution and the Defence.’
44 See the dissenting opinion of Judge Dolenc, to which I subscribe: Separate Dissenting Opinion of Judge Pavel Dolenc on Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, Bagosora and others (ICTR-98–41-I), Trial Chamber III, 5 December 2001.
45 See Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, Gbao (SCSL-2003–09-PT), Judge Boutet, 10 October 2003.
46 A deviating position may have been adopted by the ICTR Trial Chamber in the Rutaganda case. See Decision on the Urgent Motion Filed by the Defence for the Immediate Transfer and Appearance of a Detained Witness, Froduald Karamira, Rutaganda (ICTR-96–3-T), Trial Chamber I, 26 March 1998, 10. Here, the Trial Chamber denied the transfer and noted in this context that ‘the Defence has also failed to present evidence, indicating that Froduald Karamira would consent to testify for the defence’.
47 See, e.g. Order for Temporary Transfer of Three Detained Witnesses pursuant to Rule 90bis of the Rules of Procedure and Evidence, Akayesu (ICTR-96–4-T), Trial Chamber I, 31 October 1997; Order for Temporary Transfer of Three Detained Witnesses (Q, L, AB) pursuant to Rule 90bis of the Rules of Procedure and Evidence, Musema (ICTR-96–13-T), Trial Chamber I, 19 April 1999; ICTR, Order for the Transfer of Four Detained Witnesses pursuant to Rule 90bis, Kajelijeli (ICTR-98–44A-T), Trial Chamber II, 29 June 2001; and Decision on the Prosecutor's Motion for Leave to Call Additional Witnesses and for the Transfer of Detained Witnesses, Nyiramasuhuko and others (ICTR-97–21-T, 97–29-T, 96–15-T, 96–8-T), Trial Chamber II, 24 July 2001. In this last decision, the Trial Chamber ordered the transfer of 27 detained witnesses.
48 See Rutaganda, supra note 46, where the detained witness was awaiting execution of the death penalty.
49 In this respect, one can think of the following scenarios: arbitrary arrest or detention, detention following a denial of fair trial, (gross) violations of the rights of the detained person.
50 See the ICTR Appeals Chamber ruling in Barayagwiza: ‘The International Covenant on Civil and Political Rights is part of general international law and is applied on that basis. Regional human rights treaties, such as the European Convention on Human Rights and the American Convention on Human Rights, and the jurisprudence developed there, are persuasive authorities which may be of assistance in applying and interpreting the Tribunal's applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom’, Decision, Barayagwiza (ICTR-97–19-AR72), Appeals Chamber, 3 November 1999, 40.
51 Following the decision of the European Court of Human Rights in Soering, see Ng v. Canada (UN Doc. CCPR/C/49/D/469/1991 (1993)), 98 International Law Report, at 479, following the European Court of Human Rights’ Soering-decision (Soering v. the United Kingdom, Eur. Ct. of HR, Judgement of 7 July 1989, Series A, Vol. 161).
52 Rule 90bis is supportive of such a position in that detention during testimony given at the seat of the Tribunal may not exceed the duration of a sentence of imprisonment.
53 Order for the Return of a Detained Witness, Tadi (IT-94–1-ST, IT-95–7.Misc.1), Trial Chamber II, 27 May 1997.
54 In fact, the Chamber only referred to Principle 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment adopted by the UN General Assembly on 9 December 1988. It is to be expected that this reference is only illustrative and does not exclude the applicability of other instruments (ibid.).
55 In this respect, one should take note of the efforts of Opaci to prevent his return to Bosnia via the Dutch Courts; see Opaci v. The Netherlands, District Court The Hague, 30 May 1997, Case No. 97/742. Whereas in this decision, the Dutch court declined to review the ICTY's order for return, the government has, in the implementation of the ICC Statute, reserved the right to refuse assistance if this would be incompatible with obligations under the European Convention on Human Rights; see, on this matter, G. Sluiter, ‘Implementation of the International Criminal Court in the Dutch Legal Order’, 2 Journal of International Criminal Justice (2004) 158–178, at 172.
56 See M.H. Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’, 7 Duke Journal of Comparative and International Law (1997), at 349.