16 June 2017

Mending Walls: Avenues to Restore Trust in Victim and Witness Protection | Part 2

Written by Dr.Isabelle Lassee

Introduction

Since the end of the war in 2009, victims’ groups within and outside Sri Lanka have demanded accountability for crimes allegedly committed during the armed conflict.1 This call was relayed by the UN and the UN Human Rights Council (UNHRC) resolution 30/1 – co-sponsored by Sri Lanka in October 20152 ¬– constituted the country’s first meaningful step towards truth, justice, reparations and non-recurrence. By co-sponsoring this resolution, Sri Lanka made a commitment to the international community as well as to its own citizens to take steps towards achieving the goals of transitional justice (TJ). In particular, it committed to establish a Truth and Reconciliation Commission, an Office on Missing Persons, an Office for Reparations and a Special Court with a Special Counsel.3 TJ is widely regarded as being a victim centered journey towards truth, justice and reconciliation.4 Therefore, an effective victim and witness protection (VWP) framework that can secure the participation and trust of victims and witnesses is indispensable for the success of any transitional justice process.

In August 2016, the Office on Missing Persons (OMP) Act was passed by the Sri Lankan Parliament. Interestingly, the OMP Act states that the OMP is to have its own autonomous and seemingly self-sufficient victim and witness protection ‘Division’. This Division has an obligation to protect, support and assist victims and witnesses that will engage with the OMP in the future.5 The provision for a VWP Division within the OMP initially brought about some confusion since the Assistance to and Protection of Victims of Crime and Witnesses Act (VWP Act) was already in operation within the country. However, the establishment of this Division was a pivotal moment since it signaled Sri Lanka’s intention of adopting a TJ institution-led approach to victim and witness protection. It also showed awareness on the part of the drafters and/or the government that the current national VWP framework was wholly inadequate to meet the unique challenges of protecting victims and witnesses in a transitional justice setting. Most importantly perhaps, it evidenced a clear willingness on the part of the government to break away from past experiences of investigations into war-time abuses that were marred with allegations of threats and intimidations towards victims and witnesses. In fact, victims and witnesses who have in the past participated in fact-finding inquiries into alleged International Humanitarian Law (IHL) and International Human Rights Law (IHRL) violations—such as the Udalagama Commission—have experienced retaliations for their involvement in the proceedings.6 The personnel/staff of these fact-finding bodies have also faced threats and intimidations due to their participation in the process.7

Given the real and perceived deficiencies of the national VWP framework highlighted in part one of this series titled Reforming Sri Lanka’s National Victim and Witness Protection System, it is necessary for Sri Lanka to adopt a TJ institution-led approach to VWP.

Violence or threats of violence against victims and witnesses of international crimes often originate from State level entities, in addition to organized armed groups. Furthermore, insider witnesses from State law enforcement institutions often testify in TJ processes about the widespread and systematic violations committed by State agents. As a result, they are more vulnerable to reprisals and violence by State level entities. In Sri Lanka too, allegations of international crimes have been leveled against law enforcement and security sector personnel by many victims and potential witnesses. This increases the risk of State level violence against those who wish to participate in TJ processes,8 especially because law enforcement personnel in Sri Lanka have a legacy of harassing/intimidating victims and witnesses who testify in politically sensitive cases.9 Within this backdrop, meaningful protection cannot be provided to victims and witnesses of international crimes under a national framework that lacks the necessary institutional independence from Sri Lanka’s governmental and law enforcement apparatus. However, this shortcoming can be overcome if victims and witnesses of international crimes are given protection by independent TJ institution-led VWP systems. Interestingly, several submissions by victims and organizations before the Consultation Task Force on Reconciliation Mechanisms (CTFRM) strongly advocated for such an institution-led approach to VWP.10

The justifications adduced for Sri Lanka to follow an institution-led approach to VWP for the transitional justice process, does not in any way detract from the urgent need to reform the country’s national VWP Act. Indeed, transitional justice institutions are often resource intensive bodies that have many functions other than VWP. As a result, these institutions may face budgetary constraints that may limit their ability to provide effective protection to all victims and witnesses.11 For example the Special Court for Sierra Leone and the Special Panel for Serious Crimes in East Timor faced significant budgetary constraints which ultimately undermined the effectiveness of their VWP activities.12 The situation before the Special Panels was such that witnesses and the accused were often transported to court in the same bus.13 If similar constraints were to materialize in Sri Lanka, a credible and effective national VWP system must exist to complement the TJ mechanisms’ protection/assistance framework.

I. Inter Institutional Linkages and Challenges to Victim and Witness Protection

The effective protection of victims and witnesses who wish to participate in the transitional justice process would require a high degree of coordination between the different TJ mechanisms. Such coordination would be required to ensure that individuals are protected effectively throughout the entirety of their TJ journey and that protection measures are appropriately adapted to suit the victims/ witnesses’ level of interaction with each mechanism. In order to facilitate this coordination, the mechanisms will have to share information about victims/witnesses’ involvement within each mechanism, the nature of information provided as well as the protection measures already in place.

Information sharing among mechanisms will also be required to facilitate their substantive work including the carrying out of relevant investigations. For example, the sharing of witness statements between the Truth, Justice, Reconciliation and Non-Recurrence Commission (TJRNRC), the Special Court and the OMP could facilitate the respective investigations of each mechanism and would therefore be essential for the fulfillment of victims’ rights to truth, justice and non-recurrence. However, there may be situations where the sharing of information between mechanisms is challenging. For instance, this would be the case if the information had been obtained confidentially from a third party, so as to ensure the security of the sources.

This section explores some of the challenges that a TJ institution-led VWP model could encounter in terms of coordination and information-sharing and suggests possible solutions for Sri Lanka.

1. A framework for coordination of TJ institution-led VWP

Granting continuous and coordinated protection to victims and witnesses who may want to engage with multiple transitional justice mechanisms is necessary to sustain momentum and confidence in Sri Lanka’s TJ project.

If Sri Lanka were to adopt a TJ institution-led VWP system, the first decision to be made at a policy level would be whether to:

(a) set up a joint VWP unit that would service all TJ mechanisms, or

(b) opt for a model whereby each TJ mechanism would have its own VWP unit for the protection of those who approach that mechanism in their capacity as witnesses or victims.

In post-war Sierra Leone, the Justice Ministry briefly explored the option of a joint VWP unit that would service both the country’s Truth Commission and the Special Court.14 The proposal of the Justice Ministry was to set up a common pool of resources between the Truth Commission and the Special Court, to be utilized for joint activities (including investigations, translations, public relations and victim and witness protection) between the two mechanisms.15 A joint protection model of this nature offers the highest degree of integration and coordination between the various TJ institutions. Indeed, the Sierra Leone Justice Ministry stated that inter-institutional consistency and efficient resource utilization were the main justifications for this model.16 However, a joint VWP model in a TJ setting also has downsides. Different transitional justice institutions aim to achieve different objectives and may have different priorities. For instance a Truth Commission would often be wholly victim centric, while a Court or Tribunal would need to balance the victims’ needs against the rights of the accused (see infra II). As a result of these differences, deadlocks in decision making are a very strong possibility under a joint VWP model. Such deadlocks would not only hamper the work of the transitional justice institutions, but would also endanger the safety of many victims and witnesses.

The other choice is to opt for the establishment of discrete and dedicated VWP units within each TJ mechanism. The Act establishing the Office on Missing Persons specifically provides for the establishment of a discrete VWP Division.17 Therefore, it appears that Sri Lanka is heading towards a model wherein each mechanism will have its own VWP unit. While this is not in itself problematic, for such a model to function smoothly and efficiently, a high degree of cooperation would be required between the various mechanisms.

Many victims or witnesses are likely to engage with multiple TJ institutions. It is therefore essential to determine in advance which institution will be primarily in charge of VWP and the time period during which the protection will be guaranteed to the victims and witnesses. Typically, transitional justice institutions are ad hoc institutions created for a limited period of time to discharge a specific and time-bound function.18

A number of issues will need to be resolved to ensure the continuity and efficacy of protection. These include:

a) Determining which institution will be primarily in charge of protection at a given point in time,

b) Identifying the conditions under which inter-institutional transfer of protection responsibilities should take place and

c) Determining the modalities of cooperation between the various TJ institutions approached by a given victim or witness.

a. An institution primarily in charge of protection

Victim and witness protection programmes are holistic by nature. They are designed to ensure that all measures relevant and necessary for the protection of a person are taken and maintained. For this reason, the same person cannot be admitted into different protection programmes under multiple TJ mechanisms at the same time. Not only would this be unmanageable, it would also inevitably create situations where protection measures adopted under different protection programmes conflict with one another. This would risk jeopardizing the security of the persons seeking protection as well as the efficacy of the entire protection programme. Therefore, if Sri Lanka were to adopt a system where the protection functions are carried out by dedicated protection units within various TJ institutions, a single TJ institution will have to be primarily responsible for the protection of a person at a specific point in time.

The above reasons do not necessarily apply to witness assistance measures. Witness assistance measures are geared towards addressing the financial and psychosocial needs of victims and witnesses. They can include counseling, referral to medical professionals and the provision of financial assistance for victims and witnesses. The availability of multiple assistance schemes is unlikely to be detrimental to victims and witnesses, unless the conditions for access to the various assistance schemes are cumbersome and unclear. On the other hand, if criteria for application are straightforward and transparent, the possibility for victims and witnesses to seek assistance from the mechanism of their choice can be empowering. Thus, each mechanism must be able to offer an assistance scheme that is best tailored to the risks and/ or vulnerabilities likely occasioned by victims/witnesses’ participation in that specific process. There must therefore be a victim/witness assistance unit embedded in each mechanism. This unit should be accessible for advice and financial and psychosocial support for all those who approach or seek to approach the mechanism for participation.

As far as protection stricto sensu (under a protection programme) is concerned, a victim or a witness who first approaches a TJ mechanism should be able to seek protection from that mechanism, unless he/she:

a) is already protected under another program, or

b) a protection request is pending before another mechanism.

This is unproblematic and enables all victims and witnesses to seek protection from the beginning of their TJ journey with minimum complications. Under this model, the institution primarily in charge of protection is the first institution to which the application is made by a victim or a witness. In the absence of a scheme of this nature victims and witnesses may make multiple applications for protection to different mechanisms pending a threat assessment by one mechanism. This is problematic as it would overburden all mechanisms with redundant applications and slow down their respective threat assessment process.

However, in rare instances a person may be justified in deciding to seek protection under a different scheme even before receiving a determination about his/her previous protection application. For example, a person may approach the TJRNRC and soon thereafter testify before the Special Court. That person’s participation as a witness before the Special Court will have a direct impact on his/her security situation. A first important step would therefore be to bring this information to the attention of the TJRNRC’s VWP unit so that this new information could be factored into the Truth Commission’s threat assessment. At the same time, it may be justified for that person to seek protection before the Special Court instead of the Truth Commission. This is because the Special Court’s VWP unit would be better placed to ensure all aspects of the witness’ protection at the different stages of the judicial process and to balance the competing imperatives of witness protection and due process rights of the accused party (see infra II). Therefore, as this example illustrates, there must be specifically delineated circumstances under which victims and witnesses are allowed to apply to a protection scheme, while admittance into another protection programme is pending. This is provided that they withdraw their applications for protection previously made under a different scheme.

b. Conditions for Transfer of Protection

Transfer of protection responsibility should be possible even after a person has been formally admitted into a mechanism’s protection programme. This is because, as explained above, depending on the circumstances and the level of engagement of a victim/witness with each mechanism, the protection may be more effectively guaranteed by a given mechanism rather than the others. While a person may decide to leave a protection programme and apply to another mechanism for protection, such a decision may create a protection gap and for this reason would be unwise. In light of this, an institutional transfer of protection would be preferable.

A number of other reasons may also justify a transfer of protection. For instance, this may be necessary due to the ad hoc nature of TJ institutions. Thus if an institution is disbanded—to the extent that those formerly protected by this institution are participating in other TJ processes—the responsibility for their protection may be transferred to another mechanism. While transfer arrangements should not in any way distract from the need to establish residual institutions (such as the Residual Special Court for Sierra Leone) tasked inter alia with ensuring the continuity of victim and witness protection, they may alleviate the burden on these residual institutions by ensuring a more even distribution of protection responsibilities.

The decision to transfer protection responsibilities must be taken by personnel trained in VWP and according to pre-established guidelines. This decision could either be taken by an independent authority in charge of coordinating the work of the TJ mechanisms (typically the Secretariat for Coordinating Reconciliation Mechanisms) or by the TJ institution primarily in charge of protection for a given person. In any event, this decision must transparent and impartial.

Because this model removes decision-making from those seeking protection, it must contain a number of safeguards to ensure that the decision to transfer victims or witnesses to another protection scheme is not to their detriment. Thus, there must be common criteria for threat assessment and similar protection measures should be available within all four TJ mechanisms. Vetting processes and training for protection officers of all mechanisms should also be harmonized. Finally there must be a centralized appeal process to review protection decisions taken by the VWP units of the various TJ mechanisms.

Thus a comprehensive framework must identify the institution primarily in charge of protection and the conditions and procedures for the transfer of protection responsibilities. The framework must also provide for the modalities of cooperation between the various VWP units, as protected individuals are likely to interact with more than one mechanism over the same period of time.

c. Modalities of Cooperation

In a situation such as Sri Lanka, where multiple TJ institutions are likely to function simultaneously, the different VWP units will have to collaborate to ensure the protection of persons who seek to participate before the different TJ mechanisms. For example, if a person is already protected under the VWP scheme of the TJRNRC and has to give evidence or participate in the Special Court proceedings, a need for coordination will arise in order to ensure the continuity of the protection for the time during which that person participates in the Special Court proceedings or even during transport to the Special Court.

Ideally, the provision of assistance measures should also be coordinated between the different TJ mechanisms to avoid unnecessary duplication of similar services and wastage of resources.

Cooperation arrangements for protection between the various mechanisms must be determined in advance through a clear framework communicated to the protected person as soon as possible and in a language he/she understands. Absent any such framework, victims/witnesses are likely to be confused and disoriented. This could ultimately erode their confidence in the different TJ mechanisms. In addition, if cooperation arrangements are concluded on an ad hoc basis, this could lead to protracted delays in the negotiation of individual arrangements. This approach could also lead to situations where the negotiations between various VWP units for the protection arrangements of a victim/witness stall or are prolonged for an unreasonably long period of time. This would leave the victim/ witness in a protection limbo and deprive the TJ institutions of his/ her participation.

The inter-institutional coordination of witness protection/assistance measures may also be provided for in a memorandum of understanding signed between the relevant TJ institutions. For example in Peru, the Truth Commission signed a formal agreement with the Prosecutor’s office early on in its work, in order to help coordinate witness protection activities across the two institutions.19 Under this agreement, the Peruvian Truth and Reconciliation Commission could request the Prosecutor’s Office to implement a protection measure on behalf of a witness before the Commission.20 The Commission would be required to submit a comprehensive protection request to the Prosecutor’s Office, specifying the grounds for requesting protection measures and any recommended forms of protection.21 The Prosecutor could independently evaluate this request and enforce protection measures in terms of Peru’s Law 27378.22

While the Sri Lankan TJ mechanisms may similarly enter into agreements to coordinate their protection activities, it would be preferable for the contours of protection responsibilities and means of coordination to be articulated in advance into a clear and transparent framework. In fact, many of those who participated in the public consultations carried out by the CTFRM advocated for the existence of a holistic and co-operational matrix between the four transitional justice mechanisms.23 The purpose of such a matrix would be to enable greater cooperation between the various TJ mechanisms. This is especially necessary because coordination may be required between more than two institutions. Unfortunately, the decision to establish the TJ institutions one at a time runs counter to the approach.

d. Takeaways for Sri Lanka

As the discussion above indicates, granting continuous and coordinated protection to victims and witnesses across all four TJ mechanisms will require policy makers to design a comprehensive and transparent protection framework in advance. This framework would broadly need to (a) specify the principles that would govern institutional responsibility for protection at a given point in time (b) stipulate criteria for the transfer of protection between mechanisms and (c) determine the modalities to be adopted for the coordination of protection activities across mechanisms. Since there is a clear delay on the part of the government in establishing the remaining TJ mechanisms and operationalizing the OMP, stakeholders should utilize this time period to consultatively design a protection framework and ensure that it is conceptually sound and practically feasible. Accordingly, procedures would need to be put in place to ensure that there is no unnecessary duplication of resources when carrying out protection. At the same time, these procedures should not be detrimental to the quality of protection received by victims or witnesses. Finally, the protection framework should harmonize protection procedures (where appropriate) and the training of protection personnel across the mechanisms. This is to ensure that victims and witnesses receive protection of a similar quality across all four mechanisms.

2. Information Sharing and Confidentiality

A degree of coordination between the various TJ institutions would also be required to enable the sharing of information provided by various sources among the mechanisms. While such information sharing would be essential, it also entails a number of challenges when the information has been provided confidentially.

a. The Dilemma

During the consultations carried out by the CTFRM, many victims expressed the desire that the work of all four transitional justice mechanisms contribute to the pursuit of justice and accountability for crimes committed. For example, many relatives of missing persons expressed the expectation that the OMP would be the starting point for a process that would hold accountable those who had committed crimes.24 Similarly, a number of submissions emphasized the need for the proposed TJRNRC to share information with the proposed Special Court, where evidence of a crime was revealed before the TJRNRC.25 If the work of the TJRNC and that of the OMP were to contribute to a judicial process, sharing information between all mechanisms would be required.

However, the sharing of information in pursuit of justice ought not to be to the detriment of victims’ and witnesses’ security. In fact, many victims and affected family members have gone through harassment, intimidation and violence in their search for justice. In light of this, protection measures including the granting of a measure of confidentiality are considered by many as a prerequisite for victims’ and witnesses’ participation.26 As highlighted in a previous SACLS publication,27 guaranteeing confidentiality to victims and witnesses is one of the diverse ways of shielding an individual’s identity.28 The granting of confidentiality is a staple protection measure offered by most victim and witness protection schemes.29

International commissions of inquiry/fact-finding missions,30 domestic truth commissions31 and investigative bodies tracing missing persons have generally made provisions for information to be submitted confidentially in order to facilitate and incentivize the provision of such information. The Office on Missing Persons, which is the only transitional justice mechanism for which legislation has been enacted so far, follows a similar approach. Firstly, the Office has broad powers mandating it to establish processes to obtain information on the basis of confidentiality.32 Information obtained in this manner has to be preserved by all members of the OMP33 and Officers of the OMP cannot be requested to divulge such information before a court or otherwise.34 However, SACLS has repeatedly highlighted the lack of direction as to the scope of the OMP’s confidentiality obligation.35 In particular, it is unclear whether the provision of confidentiality would extend beyond the identity of—or identifying information about—victims and witnesses to cover other information that would be relevant to assist prosecutions. This would be problematic as it would be detrimental to the pursuit of justice.

In order to guarantee their security while enabling the sharing of information with the proposed Special Prosecutor, many of those who testified before the CTFRM underscored

The critical importance of the OMP’s close collaboration with a prosecutorial authority or the Judicial Mechanism and Special Court, with information gathered by the OMP indicating individual criminal responsibility for crimes under international law (including enforced disappearance, torture, war crimes and crimes against humanity), is forwarded confidentially to the Special Counsel of the proposed justice mechanism for further criminal investigation.36

However, as will be explained below, it may not always be possible for a prosecutor to guarantee that information received confidentially will not eventually be shared with the defense to guarantee due process rights. A number of precautions should therefore be taken to preempt complications at a later stage.

b. Narrowing the Scope of Confidentiality Agreements in the Interest of Truth and Justice

As reflected in some of the public consultations of the CTFRM, each transitional justice institution in Sri Lanka should be able to draw upon information/evidence before the other transitional justice bodies. For example, victim/perpetrator testimony before a Truth Commission could constitute vital evidence indicating the location of mass graves or detention sites. Similarly, information gathered before fact-finding and truth seeking bodies has been the starting point in Argentina,37 Chad38 and Peru39 to generate admissible evidence for later criminal prosecutions.

In light of this, there must be avenues for transitional justice institutions to share information while at the same time preserving victims’ and witnesses’ security. In this respect, it may be wise, as far as possible, to take a narrow approach to confidentiality. Practically, this would mean that confidentiality agreements only cover the identity of—and identifying information about—the source/victim/witness and not the entirety of the information submitted. This was also the approach advocated by SACLS regarding the granting of confidentiality by the OMP.40 Accordingly, an institution may merely undertake not to reveal information that identifies sources, victims and witnesses. This is a pragmatic approach striking a balance between the safety of the sources/victims/witnesses and the need to make important information available to other transitional justice mechanisms. Domestic victim and witness protection systems in Bosnia & Herzegovina,41 Kenya42 and Nepal43 also favor this approach since it adequately safeguards victims/witnesses while giving the entity offering confidentiality sufficient scope to use/share the information. This approach was taken by the ICC and the UN in the Lubanga case in an attempt to balance the right of the Defense to access exculpatory evidence on the one hand and the commitment to maintain a degree of confidentiality on the other. Admittedly this approach of guaranteeing confidentiality can be highly cumbersome. Thousands of documents would often need to be reviewed meticulously in order to expunge identifying information by redacting names/places/addresses or using pseudonyms. However, as the Lubanga case demonstrates, it could be very difficult to balance the two competing imperatives of victim and witness protection and the Defense’s right to access exculpatory information, if this approach is not taken.

 c. Guarding against Broad Confidentiality Agreements to Anticipate due Process Issues

The statutes and rules of procedure and evidence of international44 /hybrid45 courts and tribunals specify that the prosecutor must disclose exculpatory evidence to the Defense. Exculpatory evidence refers to information which ‘shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence’.46 As the jurisprudence of international tribunals evidences, this obligation of disclosure may conflict with the prosecutor’s ability to respect confidentiality agreements entered into with third parties.

Many of those consulted by the CTFRM expressed the wish that the Office on Missing Persons be able to share their information confidentially with a Special Prosecutor.47 This confidential information sharing is regarded as the best way to ensure the safety of those who submitted the information while at the same time contributing to the pursuit of justice. However, to the extent that a prosecutor is obligated to share exculpatory information with the Defense, he/she may either be prevented from using the evidence obtained confidentially or be obligated to share part of it with the defense. The international jurisprudence has not given full guidance on how this dilemma would be solved, other than by indicating that the prosecutor is under an obligation to take reasonable measures to lift the confidentiality and in the event he/she is unable to do so, the issue must be resolved by the chambers.48 However, there may be situations where the prosecutor is unable to obtain consent to confidentiality being lifted even for the sake of sharing the exculpatory information with the chambers.

The Lubanga case before the ICC illustrates many of the difficulties that may arise as a result of the tension between the obligation to disclose exculpatory information and the granting of confidentiality to such information under broad confidentiality agreements. In that case, the Prosecutor sought to rely on confidential information received from third parties including NGOs and the UN to build its case.49 The Trial Chamber seized with this question emphasized that the ‘disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused’s right to a fair trial’ and imposed a stay on the proceedings until the Prosecutor obtained consent to lift the confidentiality of potentially exculpatory evidence.50 Subsequent to this ruling, the Prosecutor sought to lift confidentiality agreements and whenever that was not possible to find a compromised solution. In terms of compromise, the Prosecutor sought to submit certain documents in redacted form to the defense. Expunging identifying information was an attempt to resolve the tension between the confidentiality of sources/victims/witnesses and the Defense’s right to obtain exculpatory evidence.

However, the Trial Chamber required that the Prosecutor justify his decision to redact information for each of the documents concerned.51 In order to enable the Chamber to review the documents for which redactions were proposed, the Prosecutor sought and obtained consent from his sources to give the Trial and Appeal Chambers unfettered access to all the documents covered by the confidentiality agreements.52 After review,53 the Trial Chamber approved the redactions proposed by the Prosecutor.54 Accordingly, some of the documents were submitted to the Defense in redacted form in order to safeguard the identity and safety of certain sources/victims and witnesses.55

The experience before the ICC illustrates some of the pitfalls of guaranteeing confidentiality to an entire gamut of information. Broad confidentiality agreements by prosecutors or wide confidentiality obligations within the governing statutes of truth commissions56 /fact-finding bodies can severely delay investigatory and prosecutorial efforts. Prosecutors often realize that competing interests before judicial proceedings (such as the need to disclose exculpatory evidence to the defense) require them to renegotiate the scope of confidentiality with information providers. This is especially the case where confidentiality is granted to the entirety of information obtained from a given source or witness. In the Lubanga case, the Trial Chamber initially ordered a stay of proceedings due to the absolute refusal of the sources to authorize the Prosecutor to disclose exculpatory information to the Defense or even the Chambers. Subsequent to the stay order, it took the Prosecutor almost five months to get the sources’ consent for the disclosure of exculpatory evidence to the Trial Chamber in non-redacted form.57 After protracted petitions and negotiations, the Chambers, Prosecutor and the Defense came to an agreement as to the manner in which the exculpatory information would be disclosed to the Defense.58

d. Takeaways for Sri Lanka

As these experiences demonstrate, the transitional justice mechanisms in Sri Lanka must be cautious and only enter into agreements which guarantee confidentiality to the entirety of information obtained by relevant sources as a final resort. Currently there are no explicit legal provisions under the Sri Lankan legal system requiring a prosecutor to disclose exculpatory evidence to the defense. However, the Supreme Court’s Conduct of and Etiquette for Attorneys-at-Law Rules of 1988 state that ‘it shall be the duty of an Attorney-at-Law appearing for the prosecution to bring to the notice of the Court any matter which, if withheld, may lead to a miscarriage of justice’.59 A purposive interpretation of the Supreme Court Rules imposes a duty on a prosecuting counsel to disclose exculpatory evidence in his/her possession – since failing to do so can lead to a miscarriage of justice. Additionally, the rules of procedure of the proposed Special Court for Sri Lanka are likely to explicitly recognize the Prosecutor’s obligation to disclose exculpatory evidence to the defense. In light of this, the OMP and the other proposed TJ institutions should guard against entering into agreements that grant confidentiality to the entirety of the information obtained by outside parties.

Broad agreements of this nature can severely delay justice and affect the credibility of Sri Lanka’s TJ mechanisms. For instance, while redacting identifying information in pursuit of a narrower confidentiality obligation can be time consuming, experience before the ICC indicates that it is far less complex and time consuming than the renegotiation of confidentiality agreements with multiple sources. Attempts to renegotiate multiple confidentiality agreements could significantly delay/stymie the momentum of prosecutions in Sri Lanka. Furthermore, it could erode the credibility and trust reposed among victims, witnesses and sources towards Sri Lanka’s TJ institutions.

Broad confidentiality agreements could also inhibit a nation’s search for the truth. For instance if Sri Lanka’s proposed TJRNRC systematically adopt a broad approach to confidentiality,60 it may be unable to share relevant information with a parallel transitional justice institution such as the OMP. This could prevent the sharing of testimonies that contain vital information/intelligence as to the location of a mass grave site or past detention centre. Thus, confidentiality should ideally only extend to the identity of the sources, victims and witnesses.

In situations where broad confidentiality agreements are necessary for protection, these must contain clear provisions/clauses delineating the conditions under which the source would authorize the sharing of information with a parallel transitional justice mechanism.61 This would minimize potential delays caused by complex/ad hoc negotiations between the TJ mechanism and the sources at a later stage.

Finally, decisions to share information among transitional justice mechanisms must be part of a transparent and inclusive process which gives adequate attention to the security needs and risks to sources, victims and witnesses. Measures must be put in place to ensure that adequate consultations and exchange of viewpoints take place among victims, witnesses, sources and TJ mechanisms’ staff, prior to the actual sharing of the information.62 The decision must also be preceded by a comprehensive assessment of the potential threats such a course of action could have on various parties. If threats are revealed, the Victim and Witness Protection unit of either transitional justice mechanism (or both in collaboration) should take appropriate measures to neutralize these threats.63

II. Victim and Witness Protection/Assistance before Sri Lanka’s proposed Special Court

Through the co-sponsoring of UNHRC resolution 30/1, Sri Lanka undertook to establish a judicial mechanism with special counsel to investigate violations of IHL and IHRL by all parties to the conflict.64 The ultimate success of such a mechanism would largely depend on victims’ and witnesses’ willingness to participate in the process. However, the protection of victims and witnesses in criminal processes present a number of specific challenges explored in the following.

1. Heightened Need for Protection for an Extended Network of Stakeholders

The protection of victims and witnesses who participate in criminal proceedings poses unique challenges. As the ICC’s experience in relation to Kenya shows, perpetrators of atrocity crimes who remain in positions of power, post-conflict, are willing to go to extreme lengths to sabotage criminal processes. In the ICC trials against Kenyan President Uhuru Kenyatta, Deputy President William Ruto and a former broadcaster, Joshua Arap Sang, several witnesses withdrew or recanted their testimony as a result of threats and violence.65 In particular, a key witness under the ICC’s protection was kidnapped and murdered.66 Thus, perpetrators and their supporters show an increased willingness to harass, threaten, intimidate and even kill key witnesses participating in processes that may result in long term imprisonment.

In addition to victims and witnesses who directly participate in a judicial process, other actors may require protection on account of their direct or indirect participation in a criminal process. These include court personnel as well as ground level intermediaries—activists, lawyers, civil society actors—who facilitate the participation of victims and witnesses in the process. A protection framework must therefore mitigate the risks and dangers posed to these actors due to their involvement in criminal investigations and prosecutions. The ICC has recognized this heightened danger for a broader range of actors and the corresponding obligation to offer them protection. In Prosecutor v. Katanga and Ngudjolo,67 the Appeals Chamber formally acknowledged that the ICC’s protection obligation  under Article 68(1) of the Rome Statute extended to ‘all persons at risk due to the investigations of the Prosecutor’.68 Later in 2010, the Court formally clarified its relationship with intermediaries by issuing the Draft Guidelines governing the relations between the Court and Intermediaries. This document acknowledged that the Court has an obligation to protect intermediaries it liaises with.69 The above challenges are likely to be experienced and amplified in Sri Lanka due to an entrenched culture of impunity for threat and violence against court personnel70 and witnesses participating in a criminal process.71 However, in Sri Lanka, these risks are not unique to criminal processes. Given the highly controversial nature of the allegations relating to war time abuses, and the potential of any investigation—whether judicial or extrajudicial—to challenge the carefully crafted narrative about the war, risks to victims and witnesses as well as intermediaries are in any event extremely high.72 A number of other challenges unique to a judicial process are explored in the following section.

2. Balancing Witness Protection and Due Process

As explained above, the essential difference between a judicial process and other non-judicial transitional justice measures, is that an accused may receive a criminal sentence potentially in the form of a prison sentence. For this reason, due process—which must be respected in all forms of inquiry, including extra-judicial inquiries—is regarded as a matter of extreme importance in criminal processes. The International Covenant on Civil and Political Rights—to which Sri Lanka is a party—details the due process rights that ought to be respected in criminal investigations, prosecutions and trials.73 These include the right to a fair and public hearing74 and the right ‘to examine, or have examined, the witnesses against [the accused]’.75 However, the full exercise of these rights may be impaired by victim and witness protection measures. Specifically, in camera hearings directly infringe on the accused party’s right to a public hearing. In addition, identity shielding measures as well as anonymous testimonies may limit due process rights by diminishing the accused party’s ability to cross examine key witnesses. Finally, granting anonymity to witnesses may negatively impact the accused party’s ability to prepare his/ her defense.76

While human rights treaties do not expressly allow for these rights to be limited on account of witness protection concerns, the statutes of international and hybrid courts/tribunals expressly provide for this possibility. For example, the statutes of the ICTY,77 the ICTR,78 the Special Court for Sierra Leone (SCSL)79 and the Extraordinary Chambers of the Courts of Cambodia (ECCC)80 specify that the right to fair and public hearing is subject to the adoption of victim and witness protection measures. This is in recognition that victim and witness protection is of exceptional concern when prosecuting and trying international crimes. While the statutes of international courts recognize the need to balance the rights of the accused with the protection of witnesses, they do not provide guidance on how best to ensure respect for these competing imperatives. This has led to a number of controversies as well as diverging interpretations regarding the best way to resolve the dilemma.

a. Right to a Public Hearing

Victims and witnesses of international crimes are often very vulnerable and sometimes traumatized by their experience. As such, specific measures may be required to facilitate their participation in the judicial process. In particular it may be necessary to reduce the victim/witness interaction or even visual contact with the accused or limit the publicity of the proceedings.

i. The dilemma

Human rights instruments as well as the statutes of international and hybrid courts/tribunals specifically provide for the accused party’s right to a public hearing. Publicity of proceedings is a way to ensure that the trial is fair and conducted in accordance with applicable standards. In fact, ‘by rendering the administration of justice visible, publicity contributes to the achievement of the aim of [. . .] a fair trial, the guarantee of which is one of the fundamental principles of any democratic society’.81 Moreover, in the context of criminal proceedings, publicity often acts as a bulwark against false testimony, since witnesses testify in the knowledge that they are under the scrutiny of fellow witnesses among the public.

Publicity of international crimes trials also achieves an independent objective of educating the public about the allegations, principles of criminal accountability and the applicable standards and rules of procedures. The respect for this right therefore contributes to a society’s understanding of its past and its reckoning with the commission of serious crimes. As a result, the statutes82 and rules of procedure83 of international and hybrid tribunals expressly mention that in principle, proceedings must be in public. However, this right must be balanced against the need to protect witnesses from threats to their security and risks of re-traumatization. In fact, the publicity of proceedings and in the most extreme cases, the mere presence of the accused in the victim/witness’ line of sight could be very distressing. In such cases, measures should be taken to minimize the witness’ exposure to the accused and vice versa. It may even be required to limit the publicity of the proceedings.

ii. Solutions Proposed by International and Hybrid Courts

The statutes and the rules of procedure and evidence of international and hybrid tribunals recognize that the protection of victims and witnesses may necessitate derogations to the right to public trials in some circumstances.84 However, these documents do not offer guidance on the criteria according to which one or the other imperative ought to prevail. A few principles have nevertheless emerged from the jurisprudence of the international and hybrid tribunals.

Notably, the ICC’s Pre-Trial Chamber has stated that an objectively justifiable risk to the safety of the person concerned and the proven inadequacy of less restrictive protection measures would justify the holding of closed sessions.85 At the Special Court for Sierra Leone, closed sessions were considered an extraordinary protection measure that would be ordered when there was a very real risk that the privacy or security of a witness would be compromised.86 Similar to the ICC, the Sierra Leone Special Court also considered the inadequacy of less restrictive protective measures as a factor to be considered when ordering a closed session.87 The Special Court for Sierra Leone also attempted to mitigate closed sessions’ adverse consequences to the accused by allowing the defense team to be present at such hearings.88 In such cases, the lead defense counsel was made responsible for protecting the identity of the witnesses.89

A similar dilemma of balancing competing interests exists with respect to protection measures that impact on the accused party’s right to a fair trial.

b. Right to a Fair Trial

Protection may take the form of identity concealing measures ranging from voice/face distortion technology, video recording of testimony, to the granting of anonymity to witnesses. Among these, granting anonymity to witnesses is the most controversial measure to the extent it can prevent the accused party from meaningfully cross-examining witnesses. For this reason the opportunity for and scope of this measure has been discussed extensively in the jurisprudence of international and hybrid tribunals and lessons may be learnt from the judges’ reasoning on this issue.

i. The dilemma

The accused’s right to cross examine witnesses is expressly provided for in international human rights instruments such as the International Covenant on Civil and Political Rights90 as well as in the statutes of international courts and tribunals.91 However, the ability for the defense to meaningfully cross-examine witnesses may be impaired as a result of protection measures concealing witnesses’ identity. As explained by the European Court of Human Rights:

If the defense is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defense will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility.92

For this reason, the decision to conceal the witnesses’ identity must be weighed against all other fair trials concerns and must be considered against all other avenues for protection. The jurisprudence of international and hybrid courts has developed a list of criteria further elaborating on the conditions under which a witness may be granted anonymity.

ii. Solutions Proposed by International/Hybrid Courts

The rules of procedure of international tribunals93 and hybrid courts94 specify that witness anonymity must only be granted in ‘exceptional circumstances’. In the Tadic case, the ICTY Trial Chamber prescribed five criteria95 for a witness to be eligible to give his/her testimony anonymously at the trial stage. First and foremost, there must be a real fear for the safety of the witness or his/her family. Second, the witness’ testimony must be important to the Prosecutor's case. Third, the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy. Fourth, the Chamber must take into consideration the ineffectiveness or non-existence of a witness protection programme. Finally, anonymity must only be granted if less restrictive measures are insufficient to secure the required protection.96 Subsequently, the Trial Chamber, in Prosecutor v. Blaskic distinguishes between the trial and the pre-trial phase and specifies that witnesses’ safety ought to be prioritized during the pre-trial stage while the accused party’s right to a fair trial ought to prevail once the trial began.97 The Trial Chamber in Prosecutor v. Brdanin and Talic further specifies that, in order to obtain witness anonymity at the trial stage, the prosecutor must demonstrate the existence of extraordinary circumstances.98 This high threshold led to the ICTY Trial Chamber in the Prosecutor v. Delalic rejecting the Prosecutor’s request to grant some of his testifying witnesses anonymity at the trial stage, because no evidence had been adduced by the prosecution to show that the danger to the witnesses originated from the accused party.99

The ICTY Trial Chamber in the Tadic case also specifies that the granting of anonymity should not completely preclude the assessment of witnesses’ biases. In particular, the judges must be aware of the witnesses’ identity and be able to observe their demeanor.100 The defense must also be able to question witnesses on issues unrelated to their identity or current whereabouts.101 In addition, the Court held that the granting of anonymity should not prevent questions regarding the witness’ relationship to the accused or the victim so as to enable—to some extent—the assessment of biases.102

While the ad hoc and hybrid tribunals have mainly examined the issue of anonymity from the perspective of witness participation and protection, the ICC has also examined the specific question of whether the granting of anonymity to victims could hinder their participation in the proceedings or infringe on the accused party’s fair trials rights. The ICC Statute enables the participation of victims in the proceedings other than as witnesses. In particular, the Statute specifies that when the personal interests of victims are affected, they may present their views ‘at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’103. With respect to the specific question of victims’ participation, the Court has balanced the victims’ right to participate meaningfully and safely in the proceedings with the fair trial rights of the accused. The ICC in the Lubanga case recognized the need to maintain the anonymity of victims whose safety was at risk. However, it decided to limit these victims’ participation in order to uphold the fair trial rights of the accused.104 Victims’ participation was therefore limited to the right to access public documents and to be present during the proceedings.105 In this decision, the Pre-Trial Chamber emphasized that a victim’s level of participation could increase if the latter consented to disclose his/her identity to the Uefense.106 This dilemma would also be relevant to Sri Lanka if victims’ participation is envisaged in the legislation creating the proposed Special Court.

c. Takeaways for Sri Lanka

As the above analysis indicates, the granting of certain protection measures may be problematic in the context of a criminal process. The Special Court in Sri Lanka is likely to face the same dilemmas as the ones faced by international and ad hoc courts and tribunals when attempting to balance the safety and wellbeing of victims and witnesses on the one hand and the accused party’s right to a fair and public trial on the other. In resolving these difficult questions, the Special Court may find guidance in the jurisprudence of international courts and tribunals. In particular, it is essential that the decision to maintain the anonymity of victims and witnesses is only taken in exceptional circumstances. As the jurisprudence of international courts indicates, such a decision must only be taken when no other protective measures can guarantee the safety of victims or witnesses. It is therefore of utmost importance that the Special Court adopts a robust witness protection programme that is able to secure the safety of victims and witnesses through a wide range of measures other than the granting of anonymity. If this is not obtained, the prosecutor’s decision to routinely resort to the granting of anonymity is likely to be challenged by the Defense. In this respect, the adoption of a robust VWP programme could potentially prevent protracted litigation regarding the infringement of the accused’s fair trial rights.

However, in certain circumstances the granting of anonymity will be justified. In these circumstances, the decision with respect to this protective measure should ideally be taken by the Chambers on the advice of the VWP Unit of the Special Court. If this protection decision is left to either the VWP Unit or to the Prosecutor, the competing interests highlighted above are unlikely to be adequately balanced. While the decision should ultimately be taken by the Chambers, it is important that the VWP Unit’s expertise on both the unique situation of each witness and the availability of other protection measures be factored into the decision-making process.

3. Safeguarding Victims and Witnesses under a Collaborative Protection Model: Challenges and Solutions

A judicial mechanism which seeks to hold perpetrators accountable will have a number of different divisions/units within it. These include the Prosecutor’s Office, the Defense, the Registrar, the VWP Unit and the Chambers. As a result, VWP within judicial mechanisms is often ‘inter-organ and collaborative’ in its approach.107

a. Collaborative Protection Models within International and Hybrid Courts/Tribunals

The ICC Statute, in a very general sense, assigns VWP responsibilities to the Court as a whole.108 Under the Statute’s framework, the Chambers,109 the Office of the Prosecutor (OTP)110 and the Victim and Witness Protection Unit (VWU) within the Court’s Registry,111 all hold concurrent and somewhat overlapping responsibilities in relation to VWP. The ICC statute makes it clear that these organs are supposed to work in consultation with each other to ensure VWP.112 Similarly, the Special Court for Sierra Leone’s rules of procedure assign VWP responsibilities to the court’s Witnesses and Victims Section (WVS),113 the Chambers114 and the OTP.115 The Court’s rules of procedure require the WVS to consult with the OTP and the Defense when implementing protection and assistance measures.116 The Court’s Chambers may also consult the WVS when ordering in-court protective measures.117 In the ECCC, the Chambers and the Witness and Expert Support Unit work in close consultation with each other especially when the judges are asked to order in-court protection measures.118

b. Challenges within a collaborative protection model

While inter-organ and collaborative protection models enable exchange of information for protection purposes, their ultimate success would depend on the manner in which inter-organ conflicts/coordination challenges and perceptions of unfairness are resolved.

i. Inter-organ Conflicts and Coordination

Cooperative VWP models can create conflicts between the unit or section in charge of VWP and the prosecutor; since the latter is often given subsidiary and parallel powers of VWP. These conflicts may undermine the safety of victims and witnesses. One such area of conflict is the admission of persons into a protection programme. In Prosecutor v. Germain Katanga, the Prosecutor decided to unilaterally relocate witnesses despite the VWU’s threat assessment rejecting relocation as a protection measure. The Prosecutor’s ad hoc relocation measure, which was carried out ignoring the VWU formal threat assessment, seriously undermined the safety of the witnesses.119 This ultimately led to both the Pre-Trial120 and Appeal Chambers121 rejecting the Prosecutor’s claim that it had a right to preventive relocation of witnesses.

The ICC’s experience in the Katanga case raises a number of issues. Firstly, a question arises as to which court organ should be in charge of admitting a victim or witness into a protection programme. Secondly, cooperation arrangements between the various units must be determined. Thirdly, there needs to be a method to resolve conflicting opinions between different organs about the need to admit a person into a protection programme.

In response to the first question, both the Pre-Trial and Appeal Chambers in the Katanga case have accepted the VWU’s contention that the Prosecutor’s interest in protecting its own witnesses makes it an unsuitable organ to admit witnesses into a protection programme.122 In light of this, it will be important for the Sri Lankan Special Court’s rules of procedure to clearly state that admittance into a formal protection programme is to be within the sole purview of the court’s VWU.

In relation to the second question, the inter-organ nature of VWP in a court setting would necessitate information sharing among organs for threat assessment purposes. However, this should not compromise the objectivity and neutrality of threat assessments. In this regard the Prosecutor’s office (or Special Counsel in Sri Lanka’s case) could develop inter-institutional protocols for appropriate sharing of information/intelligence to facilitate the VWU’s threat assessment process. However, the VWU should make the final decision since it alone has the necessary institutional independence and resources to make an informed and unbiased decision.

Finally, where there are disagreements between the Court’s organs about the appropriateness of admitting a person into a protection programme, the chambers should act as the final arbiter and resolve such issues.123

 ii. Maintenance of Impartiality

Commentators and scholars have raised concerns about the fairness of international and hybrid courts’ VWP frameworks vis-a-vis the defense. The defense generally has to rely solely on the VWP unit/section for the protection of its own witnesses, while the prosecutor is given autonomous protection capabilities under a cooperative model. Although furtherance of the international rule of law and the heightened danger to the prosecution’s witnesses could justify this state of affairs, any credible judicial mechanism must also adopt safeguards within its rules of procedure/operational protocols to minimize the prosecutor’s ability to abuse this system.

To illustrate, in the Special Court for Sierra Leone, the rules of procedure of the Court were drafted in a manner that gave the Prosecutor a high level of discretion to carry out witness protection activities without oversight from the other organs of the Court.124 According to some commentators, the prosecution’s overzealous use of witness protection/assistance measures led to a perception that protection/assistance was being used as a reward for testimonial evidence.125 Over time, allegations of witness inducements were also leveled against the prosecution by defense counsels. In Prosecutor v. Issa Hassan Sessay a motion was brought by the Defense to hear evidence about the Prosecutor unnecessarily duplicating payments for items or services ranging from medical supplies to ‘maintenance’, ‘information’, ‘time wasted’, school fees and rent.126 The Chambers refused to entertain this motion and a number of other similar motions on the basis of a lack of material prejudice to the Defense and the need to expeditiously move forward with the case.127 This decision is likely to have cemented the perception that there was unequal treatment of the Prosecutor and Defense in relation to VWP.

In criminal processes, measures must also be taken to ensure that there is no room for the perception that the court is partial in its dispensation of VWP and justice. A VWP unit/section must maintain strict neutrality—including appearances of neutrality—and an appropriate separation of services provided to the prosecution and Defense. Observers have noted that the cooperative witness protection model in the Special Court for Sierra Leone coupled with the physical proximity of the prosecutor’s office to the WVS and the separation of the Defense office from the WVS by way of a security fence contributed to this perception of unequal treatment.128

c. Takeaways for Sri Lanka

The sum lesson from all the challenges highlighted above is the need for the Special Court’s founding statute and/or rules of procedure to carefully delineate the protection responsibilities of the VWU, the prosecutor and the chambers. The delineation of responsibilities should ensure that adequate attention is given to the protection needs of both the prosecution and defense, that safeguards are in place to eliminate prosecutorial abuse of the witness protection framework and reduce the chances of internal conflict with respect to VWP.

Since the founding statute and the Court’s rules of procedure are unlikely to address every contingency, the different organs tasked with VWP could also enter into agreements to clarify the grey areas, much like the Prosecution‐Registry Joint Protocol on the Mandate, Standards and Procedure for Protection before the ICC.128 If such measures are not taken at the inception of the Special Court’s establishment, issues relating to the repartition of VWP responsibilities are bound to arise at a later stage. Solving these issues is likely to be time and resource intensive and is likely to prolong litigation before the Special Court.

4. Addressing Witness Assistance Needs

Witness assistance measures – such as the financial, medical, psychological and social support of victims, witnesses and their families’ - have to be prioritized on an equal scale with witness security measures within a transitional justice setting. Such assistance measures – that aim to prevent re-traumatisation and provide emotional stability – are especially important for victims and witnesses testifying before a court or tribunal.

The decision to testify before a court/tribunal is often a difficult one that has repercussions on an individual’s family relations, social position, financial situation and safety. Therefore, many victims and witnesses take this decision after much self-reflection and mental preparation. Unfortunately, not all victims and witnesses who make this difficult decision actually have the opportunity to testify before the court or tribunal. In the ICTY, between 1998 and 2003, approximately 11% of witnesses who arrived at The Hague did not testify before the Court.130 This could create frustration among many victims and witnesses for whom it would have been important to testify in order to achieve closure. In such situations in it is vital for the relevant VWP unit to provide adequate psychosocial support and counseling for these victims and witnesses.

On the other hand, participation in court processes can also be stressful and challenging for victims and witnesses. In particular, the defendant’s lawyers may cross-examine witnesses and question their credibility. It is therefore important that measures are put into place to facilitate witnesses’ testimonies under such trying circumstances. In-camera hearings and accompanied testimony are generally used to reduce the psychological stress on many victims and witnesses. While the chambers may order the aforementioned measures where appropriate, it is also important for the prosecutor and the chambers to be sensitive towards the needs of their witnesses during court proceedings. In Sri Lanka, defense counsels representing the interests of Sri Lankan Army /Special Task Force personnel before the Udalagama Commission have engaged in insensitive and aggressive cross-examination of testifying witnesses.131 The Special Counsel’s team of the proposed Special Court must therefore possess the skills and expertise to respond to such behaviour and provide an enabling environment for testimony.

Special measures would also need to be taken in relation to child victims/witnesses and survivors of sexual violence. The Santiago Guidelines on Victim and Witness Protection state that the possibility of advanced testimony132 —such as the use of depositions or videotaped testimony133 —could be considered to safeguard the privacy of such victims and witnesses and prevent re-traumatisation. However, these measures could have a negative impact on the defendant’s ability to cross-examine witnesses and his/her right to a fair trial. Therefore, such measures would need to be authorized by the chambers.134 Other less controversial measures could be used to safeguard the anonymity or privacy of the most vulnerable witnesses. These include the use of image/voice distortion devices and the positioning of screens/one way mirrors within the courtroom. If such measures are adopted, the chambers could allow a single representative from the defense team to have face-to-face access to the witness in order to avoid undue prejudice to the defendant’s right to a fair trial.135

Finally, other out of court assistance or support measures should also be adopted to facilitate participation in the judicial process. For instance, the Special Court must compensate witnesses for loss of earning due to the time spent testifying or preparing for a trial, and facilitate family visits during the period of testimony before the Special Court.

Conclusion

The government’s policy decision to take an institution-led approach to VWP – seemingly signaled by the provisions in the OMP Act providing for a VWP division within the OMP –is undoubtedly a positive development. However, this policy decision needs to be informed by a sound understanding of the possible complexities that are likely to arise.

Since Sri Lanka has undertaken to establish four separate transitional justice mechanisms, guaranteeing consistent protection throughout will require decision-makers to adopt a general framework to coordinate protection activities and assign responsibilities. This general framework should establish basic principles relating to institutional responsibility for protection at a given point in time and the transfer of protection responsibilities across mechanisms. Once this general framework is made clear to victims and potential witnesses, the mechanisms could adopt appropriate protocols, agreements and MOUs to iron out the technical aspects of inter-institutional coordination.

The undertaking to establish multiple transitional justice institutions has also created an expectation that relevant information would be shared across the mechanisms in a manner that would safeguard the security of the sources. A balance must therefore be found in this respect. In order to ensure that information sharing does not compromise the security of sources, confidentiality agreements covering sources’ identity and other identifying information should be concluded, whenever possible. However, these confidentiality agreements should not prevent the sharing of important information that would facilitate the work of other mechanisms.

In particular, the protection of victims and witnesses before a court or a tribunal—such as Sri Lanka’s proposed Special Court—presents unique challenges due to heightened danger to participants and the obligation not to compromise the due process rights of accused persons whilst carrying out protection measures. Sri Lanka may find guidance in the jurisprudence of international/hybrid tribunals when addressing this dilemma. At the same time, the Special Court should be mindful of the unique protection challenges in Sri Lanka, which stem from the country’s legacy of violence against victims and witnesses described in Part 1 of this series titled Reforming Sri Lanka’s National Victim and Witness Protection System. VWP within a court structure also requires coordination among the different organs including the VWP unit, the prosecutor’s office and the defense. Therefore, the statute and rules of procedure of Sri Lanka’s Special Court would need to be drafted in a manner that demarcates protection responsibilities precisely whilst also providing a modality for conflict resolution when disagreements about protection emerge among the organs. Finally, the Court should also be made an enabling and comfortable environment that is conducive towards victim/witness testimony.

Endnotes

1. Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (31 March 2011), ¶3; Report of the OHCHR Investigation on Sri Lanka (OISL) Human Rights Council, 30th session (16 September 2015), U.N. Doc. A/HRC/30/CRP.2, [hereinafter OISL Report], ¶2.

2. UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 30/1, 30th session (1 October 2015), U.N. Doc. A/HRC/30/1 [hereinafter Resolution 30/1].

3. Ibid, operative paragraphs 4,6.

4. See in this regard Guidance Note of the Secretary-General United Nations Approach to Transitional Justice (March 2010) which states that among the core principles which should guide a transitional justice process is to ‘Ensure the centrality of victims in the design and implementation of transitional justice processes and mechanisms’.

5. Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act, No. 14 of 2016, section 18 [hereinafter Office of Missing Persons Act (2016)].

6. ‘Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry’, (June 2009), Amnesty International, http://www.observatori.org/paises/pais_75/documentos/srilanka.pdf (accessed 20 November 2016), [hereinafter Sri Lanka’s Commissions of Inquiry], p. 30.

7. Ibid. Serious threats have been made against witnesses and reportedly against members of the VWAP Unit itself, although the latter have declined to admit this publicly.

8. See OISL Report, supra note 1.

9. Sri Lanka’s Commissions of Inquiry, supra note 6, p. 31.

10. ‘Final Report of the Consultation Task Force on Reconciliation Mechanisms’ (17 November 2016), [hereinafter Final Report CTF], p.418.

11. See Aruni Jayakody, ‘Victim & Witness Protection The Need For Further Reform’ (2015) South Asian Centre for Legal Studies, http://sacls.org/resources/publications/reports/victim-witness-protection-the-need-for-further-reform (accessed on 31 May 2017) [hereinafter VWP: The need for further reform], p. 22.

12. Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach, Standford: Stanford University Press (2007), p. 37.

13. Rupert Skilbeck, ‘Funding Justice: The Price of War Crimes Trials’, American University Washington College of Law, (accessed on 20 April 2017), https://www.wcl.american.edu/hrbrief/15/3skilbeck.pdf, p.7.

14. Charles Chernor Jalloh, The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law, New York:Cambridge University Press, (2013), p. 490.

15. Ibid.

16. Ibid.

17. Office on Missing Persons Act (2016), supra note 5, 18(1).

18.  Interestingly, the situation in Sri Lanka is somewhat different since at least one of the institutions that were proposed as part of the transitional justice package, namely the Office on Missing Persons, will be permanent. In any event, the question of coordination for VWP between the various TJ institutions will necessarily arise.

19. Priscilla B. Hayner, Unspeakable Truths, Facing the Challenge of Truth Commissions, New York/London: Routledge, (2002) [hereinafter Hayner], p. 95.

20. ‘Institutional Cooperation Agreement Between the Prosecutor’s Office and the Truth and Reconciliation Commission’, (August 2002), Comisión de la Verdad y Reconciliación, http://www.cverdad.org.pe/ingles/lacomision/cnormas/convenio25.php, Part Four: II.

21. Ibid.

22. Ibid.

23. Final Report of the CTF, supra note 10, ¶218. While analysing the submissions received by CTF it is evident that most submissions perceived inter-linkages, co-relationships or a flow between the TJRNRC and the rest of the mechanisms through a “holistic approach”. The mechanisms were seen as functioning as independent entities but where necessary complementing and coordinating with each other.

24. Final Report CTF, supra note 10, ¶135: “Although there is no provision for the OMP to get directly involved with prosecutions within the existing framework of the OMP, the expectation by affected families that the findings of the OMP would lead to some form of justice, cannot be overstated.” (emphasis by the CTFRM).

25. Final Report CTF, supra note 10, ¶219.

26. Final Report CTF, supra note 10, ¶415.

27. Medhaka Fernando & Dr Isabelle Lassee, ‘Operationalizing the Office on Missing Persons: Manual of Best Practices’, (November 2016), South Asia Centre for Legal Studies, http://sacls.org/resources/publications/reports/operationalizing-the-office-on-missing-persons-manual-of-best-practices.

28. Other identity shielding measures include the use of facial/voice distortion technology when garnering evidence/testimony from victims and witnesses.

29. See in this regard Commission of Investigation on Enforced Disappeared Person, Rule 2072 (13 March 2016), Rule 28(7); Indonesian Law on Witness and Victim Protection, section 9; Witness Protection Act Kenya, section 4(3).

30. ‘Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice’, OHCHR (2015), http://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf, pp. 75.

31. The Truth and Reconciliation Act of 2000, Supplement to the Sierra Leone Gazette, Vol. CXXXI, No. 9(Feb. 10, 2000) section 7(3): “At the discretion of the Commission, any person shall be permitted to provide information to the Commission on a confidential basis and the Commission shall not be compelled to disclose any information given to it in confidence”.

32. OMP Act, section 12(c)(iv) & (v).

33. Ibid., section 15(1).“Notwithstanding anything to the contrary in any written law, except in the performance of his duties under this Act, every member, officer, servant and consultant of the OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence.”

34. OMP Act, section 15(2): “No member, officer, servant or consultant of the OMP shall be required to produce, whether in any court or otherwise, any material communicated to him in confidence in the performance of his duties under this Act, except as may be necessary for the purpose of carrying out or giving effect to, the provisions of this Act.”

35. See in this regard Niran Anketell, ‘Commentary on the Bill Titled Office on Missing Persons’, (June 2016) South Asia Centre for Legal Studies, http://sacls.org/resources/publications/reports/commentary-on-the-bill-titled-office-on-missing-persons, pp. 16-17; Operationalizing the Office on Missing Persons, supra note 27, p.29.

36. Final Report CTF, supra note 10 chapter 4, ¶135.

37. Hayner, supra note 19, p. 94 : “According to Luis Moreno-Ocampo, who was the deputy prosecutor in Argentina, the timing and nature of these trials would have been “impossible” without the information from the commission, known as CONADEP. “Perhaps it would have been possible to carry on a trial without CONADEP’s files, but we never could have prepared it in such a short time, nor gathered that number of solid cases to present,” he told me.”

38. Ibid.

39. Ibid.

40. Operationalizing the Office on Missing Persons, supra note 27, p.29.

41. Witness Protection Program Law BiH, 2003, section 6(2).

42. Witness Protection Act Kenya, section 23(3).

43. Commission of Investigation on Enforced Disappeared Person, Rule 2072 (13 March 2016), Rule 28(1).

44. ICTY, Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (8 July 2015) [hereinafter ICTY Rules], Rule 68; Rome Statute of the International Criminal Court, art 67(2); ICTR, Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (13 May 2015) [hereinafter ICTR Rules], Rule 73.

45. Special Court for Sierra Leone, Rules of Procedure, (28th May 2010) [hereinafter SCSL Rules] Rule 68.

46. Rome Statute of the International Criminal Court, art 67(2).

47. Final Report of the CTF, supra note 10.

48. ICTY, Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, Rule 68 (iii).

49. The Office of the Prosecutor (OTP) of the ICC initiated proceedings against Lubanga on the basis of confidential information provided to the court by the United Nations and a number of NGOs. The OTP obtained this information by relying on Article 54(3) (e) of the Rome Statute which allowed the Prosecutor to receive third party information by granting such information confidentiality under an agreement, if the sole purpose of obtaining such information was to generate new and independent evidence. The ICC Prosecutor however sought to use the information it had obtained under the confidentiality agreements directly at the trial proceedings. See in this regard Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements, ¶72 (Statement of the Deputy Prosecutor, May 06th 2008).

50. Decision on the Consequences of Non-Disclosure of Exculpatory Materials covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain Other Issues Raised at the Status Conference on 10 June 2008, Appeal Chamber, ICC-01/04-01/06-1486, 21 October 2008, ¶92.

51. ICC, Prosecutor v. Lubanga, ICC-01/04- 01/06-1019, Trial Chamber I, Situation in the Democratic Republic of Congo, Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, (11 November 2007) ¶27.

52. ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1644, Situation in the Democratic Republic of Congo, Trial Chamber I, Reason for Oral Decision Lifting the Stay of Proceedings, (23 January 2009), ¶17.

53. ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Situation in the Democratic Republic of Congo, Status conference - Open Session, (18 November 2008) : “The Judges have now reviewed each document with care, along with the extent of the proposed disclosure on the part of the Prosecution for each of them and the suggested approach that should be taken if it is strictly necessary for some redactions to be retained.”

54. ICC, Prosecutor v. Lubanga, ICC‐01/04‐01/06, Situation in The Democratic Republic of Congo, Trial Chamber I, Prosecution’s Notification of Disclosure of Exculpatory and Rule 77 Material to the Defense, (18 and 20 November 2008), [hereinafter Prosecution’s Notification of Disclosure of Exculpatory and Rule 77 Material to the Defense], ¶2.

55. Ibid.

56. The Truth and Reconciliation Commission Act Sierra Leone, section 7(3): “At the discretion of the Commission, any person shall be permitted to provide information to the Commission on a confidential basis and the Commission shall not be compelled to disclose any information given to it in confidence” (emphasis added).

57. Rachel Katzman, ‘The Non-Disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused's Right to a Fair Trial’, Northwestern Journal of International Human Rights (2009) 8(1) p. 97.

58. Prosecution’s Notification of Disclosure of Exculpatory and Rule 77 Material to the Defense, supra note 57, ¶2: (1) a non-redacted version of the documents, save for the identity of the information provider; (2) a redacted version of the documents, limited to names and identifying information; (3) a redacted version of the documents that removed other types of information; (4) summaries instead of the original documentation, including verbatim quotes on the relevant subjects; (5) admission of fact; (6) alternative evidence; and (7) documents disclosed in full, with restrictions as to the extent of their publication.

59. Rule 52.

60. This could be the case for instance if it is given significant discretion for the granting of confidentiality. See in this regard The Truth and Reconciliation Act of 2000, Supplement to the Sierra Leone Gazette, Vol. CXXXI, No. 9 (Feb. 10, 2000) section 7(3): “At the discretion of the Commission, any person shall be permitted to provide information to the Commission on a confidential basis and the Commission shall not be compelled to disclose any information given to it in confidence.”

61. This could include authorization if the disclosure is

a. made only to the Chambers of a Court or

b. made to the Defense only in redacted form or after expunging of key identifying information.

62. Christopher D Toten, ‘The International Criminal Court and Truth Commissions: A Framework for Cross-Interaction in the Sudan and Beyond’, North-western Journal of Human Rights 7(1) (2009) p. 25.

63. See ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-1488, Situation in the Democratic Republic of Congo, Office of the Prosecutor, Prosecution’s submission of 93 documents highlighting the passages of potentially exculpatory value or falling within the parameters of Rule 77, (22 October 2008) ; the OTP submitted the undisclosed evidence to the Trial Chamber for review and agreed that a number of methods could be used to ensure the safety of confidential information providers after it disclosed the evidence to the Defense.

64. Resolution 30/1, supra note 2, operative paragraph 6 : “[...] notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, Defense lawyers and authorized prosecutors and investigators

65. ‘ICC: Kenya Deputy President’s Case Ends Witness Interference Undermined Trial’, (April 2016), Human Rights Watch, https://www.hrw.org/news/2016/04/05/icc-kenya-deputy-presidents-case-ends “[...] previous ICC ruling had suggested that there had been systematic efforts to corrupt witnesses, including through bribery.” According to the ICC prosecution, at least 16 of its original 42 witnesses withdrew, most citing threats, intimidation, or fear of reprisals.

66. Alexa Koenig, Stephen Smith Cody, and Professor Eric Stover, ‘After Kenya, Lessons for Witness Protection’, (June 2015), International Criminal Justice Today, https://www.international-criminal-justice-today.org/arguendo/after-kenya-lessons-for-witness-protection/.

67. ICC, Prosecutor v. Katanga, ICC-01/04-01/ 07-475, Situation of the Democratic Republic of Congo, Appeals Chamber, Judgement 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).

68. Judgement 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) ¶44.

69. ‘Guidelines Governing the Relations between the Court and Intermediaries for the Organs and Units of the Court and Counsel working with Intermediaries’, ICC (March 2014), https://www.icc-cpi.int/iccdocs/lt/GRCI-Eng.pdf, p. 15.

70. ‘Sri Lanka Judge, Bodyguard Killed in Colombo’ (October 30th 2009), Voanews, http://www.voanews.com/a/a-13-sri-lanka-judge-bodyguard-killed-in-colombo/291469.html.

71. See generally Medhaka Fernando, ‘Reforming Sri Lamka’s National Victim and Witness Protection System’ (June 2017), South Asia Centre for Legal Studies.

72. For instance, victims and witnesses before the Udalagama fact-finding commission, tasked with inter alia investigating atrocities linked to the country’s security forces, faced intimidation and bodily violence for their involvement in the process. See in this regard Sri Lanka’s Commissions of Inquiry, supra note 6, p. 30.

73. International Convention on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 U.N.T.S. 171 (ICCPR), [hereinafter ICCPR], arts. 9, 14.

74. Ibid. art 14(1).

75. Ibid. art. 14(3)(e).

76. Ibid. art 14(3)(b).

77. UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), (25 May 1993) [hereinafter ICTY Statute], art. 21 read with art. 22.

78. UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006), (8 November 1994) [hereinafter ICTR statute], art 19(1).

79. UN Security Council, Statute of the Special Court for Sierra Leone, (16 January 2002), [hereinafter SCSL Statute], art. 17(2).

80. Law on the Establishment of the Extraordinary Chambers, (with inclusion of amendments as promulgated on 27 October 2004) (NS/RKM/1004/00) [hereinafter ECCC Statute], art. 33 new.

81. ECHR, Sutter v. Switzerland (Series A, no. 74), Court Plenary, Judgement (22 February 1984), ¶26.

82. ICTY Statute, supra note 81, art 20(4); ECCC Statute, supra note 84, art 34 new; SCSL Statute, supra note 83, art17.

83. ICTY Rules, supra note 44, rule 78; ICTR Rules, supra note 44, rule 94A; SCSL Rules, supra note 45, rule 78.

84. See ICTR Rules, supra note 44, art 19(4); ICTY Rules, supra note 44, rules 75,79; ECCC, Internal Rules (Rev.8) (3August 2011) [hereinafter ECCC Rules], rule 29(4)(e); SCSL Rules, supra note 45, rule 75(B)(ii), rule 79.

85. ICC, Prosecutor v. Katanga and Ngudjolo Chui, ICC-01/04-01/07-474, Situation in The Democratic Republic of Congo, Pre-Trial Chamber I, decision on the set of procedural rights attached to procedural status of victim at the pre-trial stage of the case, ¶¶ 19-22. Reflects the criteria of 'objectively justifiable risk to the safety of the person' above.

86. SCSL, Prosecutor v. Fofana, Order On an Application by the Prosecution to Hold a Closed Session Hearing of Witness TF2-082 and TF2-032, (13 September 2004).

87. Ibid.

88. SCSL, Prosecutor v. Fofana, SCSL-04-14-T-352, Trial Chamber, Decision on the joint motion by Sam Hinga Norman, Moinina Fofana and Allieu Kondewa Seeking Permission For Defense Investigators to Sit in Court During Closed Sessions (28 February 2005), ¶14.

89. Ibid. ¶18

90. ICCPR, supra note 77, article 14 (3e).

91. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010) (17 July 1998), [hereinafter Rome Statute], art. 67; ICTY Statute, supra note 81, art 21(4); ICTR Statute, supra note 82, art 20(4); SCSL Statute, supra note 83, art 17(4); ECCC Statute, supra note 84, art 35.

92. ECHR, Kostovski v Netherlands (series A, Vol. 166), Court Plenary, Judgment (23 May 1989), ¶ 42.

93. ICTY Rules, supra note 44, rule 69.

94. SCSL Rules, supra note 45, rule 69; ECCC Rules, supra note 90, rule 29(3): “ The Co-Investigating Judges and the Chambers may, on their own motion or on request, and after having consulted with the Victims Support Section or the Witnesses/Experts Support Unit, order appropriate measures to protect victims and witnesses whose appearance before them is liable to place their life or health or that of their family members or close relatives in serious danger”.

95. ICTY, Prosecutor v. Tadic, (No. IT-94-1), Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, (10 August 1995) [hereinafter Tadic case], ¶¶ 62-66.

96. Ibid.

97. ICTY, Prosecutor v. Blaskic, (No. IT-95-14), Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, (5 November 1996), ¶ 24. For a similar approach see also SCSL, Prosecutor v. Kallon, (SCSL-04-15-T-556), Decision On the Prosecutor's Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, (23 May 2003), ¶15.

98. ICTY, Prosecutor v. Brdanin and Talic, (No. IT-99-36-PT), Decision on Motion by Prosecution for Protective Measures, (3 July 2000), ¶20.

99. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and The Reconstruction Of Disputed Events, Leiden: Martinus Nijhoff Publishers (2013), p.447.

100. Tadic case, supra note 101, ¶71.

101. Ibid.

102. Ibid. ¶72.

103. Rome Statute, supra note 95, art 68.

104. ICC, Prosecutor v. Lubanga, ICC-01/04-01/06-462, Pre-Trial Chamber, Situation in the Democratic Republic of the Congo, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, (22 September 2006).

105. Ibid “[t]he fundamental principle prohibiting anonymous accusations would be violated [if victims] were permitted to add any point of fact or any evidence at all to the Prosecution's case file against Thomas Lubanga Dyilo in the notification of charges document and the list of evidence.”

106. Ibid. The Court states that only if the victims agree to the disclosure of their identities to the Defense, will the Chamber examine the issue of determining whether they could be granted leave to participate in another manner in the proceedings taking place before the Pre-Trial Chamber in the case The Prosecutor vs. Thomas Lubanga Dyilo.

107. Markus Eikel, ‘Witness Protection Measures at The International Criminal Court: Legal Framework and Emerging Practice’ Criminal Law Forum (2012) 23(1).

108. Rome Statute, supra note 95, art. 68(1) “The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”.

109. Rome Statute, supra note 95, art. 57(3)(c).2 “In addition to its other functions under this Statute, the Pre-Trial Chamber may “where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information”; See also Article 64(2): “the Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”.

110. Rome Statute, supra note 95, art. 68(1): “The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” See also art. 54(3)(f) “Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence”.

111. Rome Statute, supra note 95, art. 43(6): “The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor (OTP), protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses)” (emphasis added); art. 68(4) “The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6” (emphasis added).

112. Rome Statute, supra note 95, art. 43(6) and art. 68(4).

113. Rome Statute, supra note 95, art. 43(6) and art. 68(4).

114. Ibid. rules 69, 75.

115. Ibid. rule 39(ii): “Take all measures deemed necessary for the purpose of the investigation, including the taking of any special measures to provide for the safety, the support and the assistance of potential witnesses and sources.”

116. SCSL, supra note 45, rule 34(A).

117. SCSL, supra note 45, rule 69(B).

118. Rule 29(3).

119. Chris Mahoney, The Justice Sector Afterthoughts: Witness Protection in Africa (2010) Institute for Security Studies, [hereinafter Mahoney], p. 36.

120. ICC, Prosecutor v. Katanga and Ngudjolo, (ICC-01/04-01/07-776), Appeals Chamber, 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 (18 April 2008).

121. ICC, Prosecutor v. Katanga and Ngudjolo, (ICC-01/04-01/07-428-CORR), 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, (25 April 2008).

122. ICC, Prosecutor v. Katanga and Ngudjolo, (ICC-01/04-01/07 OA 7), Appeal Chambers, 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”, (26 November 2008) ¶92 : “Assigning responsibility for relocation to the VWU ensures that all witnesses, whether ultimately appearing for the Prosecutor, the Defense or otherwise, are treated equally - and by those with relevant expertise - in matters that will significantly affect their interests. Those interests are to be specifically respected by the VWU, which will not be influenced, even unintentionally, when deciding upon whether relocation is appropriate to protect a particular witness, by the additional pressing interest of a party to the case of needing itself to secure the evidence of the witness concerned”; ICC, Prosecutor v. Katanga and Ngudjolo, (ICC-01/04-01/07-428-CORR), 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, (25 April 2008) ¶34 : “Moreover, unless the Prosecution immediately puts an end to this practice, the principle of equality of arms could be infringed and the credibility of the relevant witnesses could be affected”.

123. ICC, Prosecutor v. Katanga and Ngudjolo, (ICC-01/04-01/07-428-CORR), 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, (25 April 2008) ¶2.

124. SCSL Rules, supra note 45, Rule 39(ii). Take all measures deemed necessary for the purpose of the investigation, including the taking of any special measures to provide for the safety, the support and the assistance of potential witnesses and sources

125. Mahoney, supra note 123, p. 86.

126. SCSL, Prosecutor v. Issa Hassan Sessay, (SCSL-04-15-T), Motion to request the Trial Chamber to hear evidence concerning the prosecution’s witness management unit and its payment to witnesses, (30 May 2008), ¶12.

127. Ibid.

128. Mahoney, supra note 123, p .82.

129. The Protocol is not public, but reference is made in court filings. See, ICC, Prosecutor v. Muthaura, (ICC-01/09-02/11-59), Pre-Trial Chamber, Situation in the Republic of Kenya, Prosecution’s Response to ‘‘Defense Request for Variation of Decision on Summons or in the Alternative Request for Leave to Appeal’’, (15 April 2011), ¶. 8.

130. These included proof of the fact in issue by other evidence/witnesses and the witness testimony not being substantially needed before the ICTY.

See in this regard Holger C Rohne, ‘The Victims and Witnesses Section at the ICTY’, Max Planck Institute, https://www.mpicc.de/files/pdf1/the_victims_and_witness_section_at_the_icty_rohne.pdf , p.5.

131. Sri Lanka’s Commissions of Inquiry, supra note 6, p. 33.

132. ‘Santiago Guidelines on Victim and Witness Protection (Ibero-American Association of Public Prosecutors)’, (2008), OAS, http://www.oas.org/en/sla/dlc/witness_protection/links.asp.

133. For example, in the United States thirty-seven constituent states permit the use of videotaped testimony of sexually abused children. In Queensland, Australia, state law provides that when certain witnesses, including victims of sexual assault, testify the court may take measures to protect the witness, such as the use of videotaped evidence in lieu of direct testimony or obscuring the witness' view of the defendant. (The Evidence Act (Amendment) 1989 (Queensland)).

134. U.N. Office on Drugs and Crime, Good Practices for The Protection of Witnesses in Criminal Proceedings Involving Organized Crime (2008), p.34

135. Ibid. p.35.

 

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