engleski

Issues Relating to Witnesses

The paper addresses two very interesting and controversial topics involving witnesses at the International Criminal Court (ICC), namely, (1) the practice of „witness proofing“, i.e., the substantive preparation of a witness' the testimony by the party calling the witness ; and (2) the appropriate protective measures to institute with regard to detained witnesses. The research is inspired by following decisions: Decision on the Unified Protocol on the practices used to prepare familiarize witnesses for giving testimony at trial, Situation in the Central African Republic, Prosecutor v. Bemba Gombo, Case No. ICC-01/05- 01/08, T. Ch. III, 18 November 2010 ; Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the practices used to prepare familiarise witnesses for giving testimony at trial, Situation in the Central African Republic, Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08, T. Ch. III, 24 November 2010 ; Decision on an Amicus Curiae Application and on the “Requete tendant à obtenir présentations des témoins DRC-D02-P- 0350, DRC-D02-P0236, DRC-D02-P-0228 aux autorité néerlandaise aux fins d’asile” (articles 68 and 93(7) of the Statute), Situation in the Democratic Republic of Congo, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01/04-01/07, T. Ch. II, 9 June 2011. Authors suggest that witness proofing is not an enemy of the truth, as previous chambers of the ICC have wrongfully presumed. Rather, it is an alternate means to seek and present the truth, which method should no longer be ignored on the basis of speculative harm, but rather embraced for the substantial benefits it can bestow upon the Court in its ultimate quest for factual clarity. Although the ICC’s respect for the non-refoulement principle is certainly admirable, its decision to facilitate the asylum applications of the detained witnesses, as opposed to scrupulously honouring its cooperation agreement with the DRC, could ultimately undermine the ICC’s credibility and any future arrangements with the Congolese authorities or other nations, which now may understandably be reticent to agree to send witnesses to the ICC for fear that they will never be returned.

International Criminal Court, witness proofing, appropriate protective measures, truth, the non-refoulement principle

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