The Judges of the Court (Chambers) may order protective measures for victims and witnesses, including measures designed to prevent the disclosure of the identity of a victim or witness, under Article 68.
Judges must balance the Accused’s right to a public hearing under Article 67 against the risks to victims and witnesses if their identities are publicly revealed. In the Court’s first case, Lubanga, protective measures have frequently been granted.
The various organs of the Court and other interested entities have different roles with respect to protective measures:
- The OTP, the Defence, and victims and witnesses may apply for protective measures. A detailed procedure for the submission of requests is set out in Rule 87.
- Chambers may order protective measures. Because hearings are usually held in public, Chambers must give public reasons for ordering a hearing to be closed, and protective measures should only remain in place as long as the justification for their existence persists.
- The Victims and Witnesses Section of the Court may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance; Article 68(4).
- A State may make an application for protective measures for its servants or agents and the protection of confidential or sensitive information; Article 68(6).
In terms of the types of protective measures that may be granted:
- Chambers may order measures such as the use of electronic face and voice distortion or the use of a pseudonym; Rule 87. Chambers may also order special measures, such as allowing a counsel, a legal representative, a psychologist or a family member to be permitted to attend during the testimony of the victim or the witness. Chambers pay particular attention to the questioning of victims of crimes of sexual violence; Rule 88(5).
- Chambers may also order the non-disclosure by the OTP prior to trial of the names of victims, witnesses and other persons at risk on account of the activities of the Court.[1]
- The Registry has protection program, which includes the possibility of relocation. The OTP may not carry out preventive relocations outside of the Registry’s protection program (i.e. the Prosecution may not unilaterally relocate victims or witnesses to third countries).[2]
This article was written by Matthew Gillett. He can be contacted at matthew.gillett@peaceandjusticeinitiative.org.
[1] Rule 81(4); Prosecutor v. Katanga & Ngudjolo, “Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May 2008, Case No. ICC-01/04-01/07 (OA).
[2] Prosecutor v. Katanga & Ngudjolo, “Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber I”, 25 November 2008, Case No. ICC-01/04-01/07 OA 7 7/55ICC-01/04-01/07-776.