Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice

Abstract

In the first years of its existence, the issue of protective measures for witnesses has developed into one of the core issues for the International Criminal Court (ICC). Despite its obvious relevance, academic discussions have so far largely ignored this aspect of the Court’s work. This article will argue that, in contrast to the ad hoc Tribunals, the Rome Statute and the Rules of Procedure and Evidence split responsibilities for protective measures between the different organs of the Court, but they nevertheless fail to adequately define the precise boundaries of these responsibilities. The legal framework has therefore created uncertainty, even confusion as to the practical responsibilities for protective measures within the Court. The article will examine some resulting problems in the early practice of the ICC. At the same time, the article will present established practices in the field of witness protection that have been consensually developed between all organs of the Court. In its conclusion, the article will formulate recommendations as to how the Court can further overcome the issue of inter-organ responsibilities that are shared and divided at the same time. In this context, protective measures for witnesses should be viewed as an example as to how the Court, in its infant years, is in the process of developing a measured and balanced system that transfers statutory responsibilities into practice.