ICC’s reliance on live witness testimony at a crossroads states new IBA report

A new International Bar Association (IBA) report published today examines and assesses the achievements, challenges and needs of witnesses in cases before the International Criminal Court (ICC or the Court), and finds that the Court’s extensive reliance on witnesses is fraught with challenges.

Mark Ellis, IBA Executive Director commented: ‘The ICC has made significant strides in protecting, supporting and managing witnesses during its first ten years of operation; both the Court and its Member States are to be commended. However, the Court still encounters serious witness-related challenges in almost all of its cases.’ Dr Ellis cited the case of the prominent Kenyan politician Mr Francis Muthaura, accused of crimes against humanity, as a prime example, saying, ‘The ICC Prosecutor recently dropped all charges against Mr Francis Muthaura due to critical and unresolved problems with key witnesses.’ He added, ‘This single case highlights the myriad of issues surrounding witness-management and the need for the Court to evaluate and review its approach to witnesses in order to bolster its international credibility and ensure fair, efficient and effective trials.’

Entitled, Witnesses before the International Criminal Court, the IBA report is the result of comprehensive research and consultations with ICC officials and other key stakeholders. It will be launched at a high-level roundtable discussion at The Hague Institute for Global Justice on 15 July 2013 in the approach to the Day of International Criminal Justice (17 July). Participating in the event Witnesses under threat? An open discussion on the ICC's efforts and challenges in managing and protecting its witnesses will be key ICC officials, members of The Hague’s diplomatic community, and leading ICC experts. Discussion will focus on the Report’s key findings; the specific recommendations made to the Assembly of States Parties (ASP), the organs of the Court, and the host state (the Netherlands); and the complex issues around organising and protecting witnesses such as:

  • Obtaining state cooperation;
  • Supporting witnesses’ practical and psychosocial needs;
  • Preparing witnesses for trial, and protecting them from potential threats or interference;
  • Unregulated use of third parties (intermediaries) to liaise with witnesses;
  • The impact of the Court’s missing subpoena power;
  • The increased use of video-link testimony; and
  • Ambiguities over the post-testimony legal status of ICC witnesses at risk.

Reiterated throughout the Report is the issue of the ICC’s heavy reliance on live witnesses’ testimonies. However, the IBA also includes reference to the prosecution’s commitment to sourcing forms of credible and reliable evidence other than witness testimonies.

Justice Richard Goldstone, Co-Chair of the IBA Rule of Law Group, noted: ‘On balance, the efforts of the International Criminal Court in its first decade are remarkable. Notwithstanding, there are critical fair trial issues at stake for the defence at the ICC in terms of inadequate operational support within the Registry on witness matters and non-cooperation by some states.’  He added, ‘For example, in the Sudan, in the Banda Jerbo case, the parties have had marginal access to witnesses, which has negatively impacted the defence’s ability to investigate through no fault of its own. This raises questions around the accused’s capacity to exercise the right to prepare his or her defence, and could result in an unfair trial. This is one of the most salient issues which the Court needs to address swiftly to ensure that the next ten years in the fight against impunity are equally significant for international justice.’

Click here to download the report Witnesses before the International Criminal Court

Editor’s Notes

Journalists interested in attending the event to launch the report Witnesses before the International Criminal Court should send an email to francis.sinsai@int-bar.org

Participants include (in order of presentation):
Dr Abiodun Williams President of The Hague Institute for Global Justice
Dr Mark Ellis IBA Executive Director
Judge Sang-Hyun Song ICC President
Danya Chaikel IBA ICC Programme Lawyer
Thomas Verfuss President of the Association of Journalists at the ICC
Judge Howard Morrison ICC and ICTY Judge
Herman von Hebel ICC Registrar
Gérard Dive Federal Coordinator for Belgian Cooperation with the ICC and Tribunals
Marc Desalliers Lead Defence Counsel for Bosco Ntaganda
Prof William Schabas Professor of Human Rights Law and International Criminal Law, Leiden University
Cristina Ribeiro Investigation Coordinator at the ICC Office of the Prosecutor

The IBA’s International Criminal Court (ICC) Programme monitors fair trial issues at the ICC and encourages the legal community to engage with the work of the Court. Special focus is placed on monitoring emerging issues of particular relevance to lawyers and collaborating with key partners on specific activities to increase engagement of the legal community on ICC issues.

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