A Balancing Act: The Rights of the Accused and Witness Protection Measures

AuthorMaille Brady Bates
PositionLLB University College London and Université d'Avignon et des Pays de Vaucluse
Pages143-164
© 2014 Maille Brady Bate and Dublin University Law Society
A BALANCING ACT: THE RIGHTS OF THE
ACCUSED AND WITNESS PROTECTION MEASURES
MAILLE BRADY BATES*
Introduction
The objectives of international criminal justice are to bring justice to
victims and victim-witnesses. To this end, civil society has triumphantly
pressured and rallied around the courts in order to increase awareness of
issues faced by victims and witnesses. Leaving the role of victims in
international criminal proceedings to one side, witness protection in
relation to the rights of the accused is the central focus of this paper.
The atrocities committed in the Former Yugoslavia, Rwanda and
Sierra Leone have not been as carefully documented as the atrocities in
Nazi Germany. As a result of this, the United Nations International
Criminal Tribunals (UN ICTs), unlike the previous Nuremberg trials, have
been primarily reliant on testimonial evidence.
1 As the Nazi regime kept
careful and highly detailed written documentation of the acts they carried
out, judges at the Nuremberg trials were able to base their decisions
primarily on documentary evidence which is particularly useful in
prosecuting political and military leaders who do not directly carry out the
crimes. In contrast, the ICTs also sought to prosecute a number of
subordinates who directly carried out the crimes. In such contexts, the
evidence is more likely to come from eyewitness testimonials than from
documents. Crucial to the procurement of this evidence and therefore the
facilitation of trial is the adequate protection of participating witnesses.
Witness protection concerns the ability of witnesses to give testimony in
criminal proceedings without fear for their own mental and physical safety
or that of their family and loved ones. Witness protection also includes the
psychological protection of witnesses from re-traumatisation through
testimony. In international criminal proceedings, witness protection has
* LLB University College London and Université d'Avignon et des Pays de Vaucluse.
1 See Richard May and Marieke Wierda, “Trends in International Criminal Evidence:
Nuremberg, Tokyo, The Hague, and Arusha” (1999) 37 Columbia Journal of Transnational
Law 725, at 744; Goran Sluiter, “The ICTR and the Protection of Witnesses” (2005) 3
Journal of International Criminal Justice 962, at 963.
144 Trinity College Law Review [Vol 17
played a pivotal role in facilitating the prosecution of genocide, war crimes
and crimes against humanity. The International Criminal Tribunal for the
Former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR) were established through United Nations Security Council
(UNSC) resolutions under Chapter VII, Article 39 of the UN Charter. The
statutes of the tribunals explicitly require nation states to “cooperate [with
the] investigation and prosecution of persons accused of committing
serious violations of international humanitarian law.
2 These ad hoc
tribunals were an attempt by the international community to allow for the
prosecution of perpetrators in a neutral and independent arena, ie without
“the stain of victor’s justice.”3 Unlike the ad hoc tribunals, the Special
Court for Sierra Leone (SCSL) is a hybrid court, meaning that it is
composed of both international and local staff, and applies a combination
of national and international substantial and procedural law. The SCSL
was jointly established by the government of Sierra Leone and the UN.
Nevertheless, it is an independent and impartial international body not
subject to any government or organisation. Furthermore, unlike the ICTY
and ICTR, the SCSL is located in its own territory, in the capital of Sierra
Leone, Freetown a fact that has had significant implications for the form
of witness-protection measures employed.4
A careful balance needs to be struck between ensuring the possibility
of witness testimony through protective measures for witnesses while also
upholding the legitimacy of the trial proceedings by adhering to fair trial
norms and protecting the rights of the accused. The ad hoc Tribunals and
the SCSL presented a unique opportunity for the international community
to hold perpetrators of heinous crimes accountable and to reinforce
international human rights standards, while circumventing the issue of
2 Statue of the International Tribunal for the Prosecution of the Persons Responsible for
Serious Violations of the Former Yugoslavia since 1991, Article 13(2)(c), UN Document
5/25704, annex (1993) [hereinafter ICTY Statute]; Statute of the International Criminal
Tribunal for Rwanda (ICTR) under UNSC Resolution 955 (8 November 1994) [hereinafter
ICTR Statute].
3 Jared Paul Marx, “Intimidation of Defence Witnesses at the International Criminal
Tribunals: Commentary and Suggested Legal Remedies” (2006) 7 Chicago Journal of
International Law 675, at 678.
4 As the Court was located in the territory where the violations were committed the likelihood
of a witness’ identity becoming known was greatly increased, as information was more easily
shared among the community. For example, while both the ICTY and the ICTR permit the
use of testimony via video-link, both tribunals were reluctant to employ this measure and
instead relied on the use of screens in order to protect the witness from confronting the
accused. However, in contrast to the ICTY and ICTR, the SCSL made use of testimony via
video-link.

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