Protection and support measures

Protective and support measures for victims/witnesses who appear before international criminal tribunals are provided for a number of reasons, including: (1) to minimise serious risks to their security; (2) to avoid serious incursions of their privacy and dignity; and (3) to reduce trauma associated with their participation or giving testimony in court. Based on these reasons, three main categories of protective and special measures for victims/witnesses emerged including those aimed at: (1) protection from the accused and his counsel (also referred to as anonymity measures); (2) protection from the press and the public, such as the use of pseudonyms for victims and witnesses, the use of image or voice distortion and the use of closed sessions (also referred to as confidentiality measures); and (3) protection from retraumatisation, or so-called secondary victimisation, such as measures that avoid face-to-face confrontation with the accused (see in particular for the ICC, Articles 68 and 69(2) of the Rome Statute and Rules 87 and 88 of the RPE).

Since the Statutes of the international criminal tribunals/courts state that protective measures shall not be prejudicial to, or inconsistent with, the rights of the accused to a fair and impartial trial, full anonymity (withholding the identifying information of victims/witnesses from the accused and his/her Defence team members) has generally not been granted as a protective measure for victims appearing as witnesses. Protective measures that are applied during the investigation and prosecution of the crimes serve to minimise the risks a witness runs following testimony. However, even in the post-trial phase, the international criminal tribunals have adopted certain measures to ensure the victims’ and witnesses’ safety, including – in extreme situations – relocation either inside or outside the home country, where the need arises. Within the Registries of the international criminal tribunals/courts, a special “Witness Support and Protection Unit” exists that provides support and protection services to victims/witnesses from both the Prosecution and Defence.

Many victims of CRSV want(ed) to testify in court, with or without protection measures made available to them. In fact, some victims of sexual violence do not wish for confidentiality measures to protect their identity at all, because they do not mind others to hear their story; rather, they want others to know what happened to them (making statements like “Nothing to hide, let the world know”). However, most victims of CRSV to date opted for confidentiality measures. Some of the confidentiality measures that are in particular relevant in CRSV cases include in camera proceedings (which, according to Article 68(2), is an automatic right for victims of CRSV if they wish to make use of it) and electronic means (e.g. video conferencing – to be used for, for example, unfit victims). Measures that allow for protection from secondary victimisation include such measures as avoiding direct confrontation with the accused in court (e.g. use of screen); paying attention to the manner and time of questioning; and allowing a support person to be present during trial. Due to several instances of negative experiences at the ICTY and ICTR that impacted on the security, dignity, privacy and/or retraumatization of victims of CRSV, the ICC has nowadays more progressive rules and regulations (i.e. Article 29 of the Code of Professional Conduct for Counsel; and Article 8 of the ICC’s Code of Judicial Ethics) that state that Prosecutors and Defence lawyers are not allowed to ask intimidating questions to victims and that Judges need to control the manner of questioning of victims/witnesses so that no racist, sexist or otherwise degrading questioning are being put before them.

Recently, virtual reality (VR) and augmented reality (AR) technologies are being explored as a means to support accountability for CRSV at the ICC. Jaye Ho (FCDO, UK) together with Frontier Tech Hub is exploring such technologies: “We employ a survivor-focused perspective to explore the role of new technologies like virtual and augmented reality to reduce the re-traumatisation of survivors, and potentially improve the accountability outcomes of an international court like the ICC. For us, a survivor-focused approach means thinking about this technology beyond the courtroom, through the whole justice chain. This starts from the moment a crime is reported to a local investigator, for example, to post-conviction redress.” For example, AR can help to show the survivors injuries, while a VR can give a representation of a conflict environment.

Sources (a selection):

• Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia, 2005), 231-282.

• Binaifer Nowrojee, “Your Justice is Too Slow”: Will the ICTR Fail Rwanda’s Rape Victims?, United Nations Research Institute for Social Development (UNRISD), 2005.

ASSIGNMENT

Do confidentiality measures work in practice?

Questions:

(1) In the past – e.g. before the ICTY and ICTR – there were several challenges when victims/survivors testified in court. Give some example of how the protection and support measures didn’t work out well for victims of CRSV.

(2) How is the ICC doing as to protecting victims of CRSV who come to testify at the Court? Give some examples that came up in the cases before the ICC, including by looking at what victims themselves said about their experience in court.

(3) What kind of sanctions can the ICC impose when identity details of victims/witnesses of CRSV are leaked by the Defence? In addition, how effective are these sanctions?

(4) Would the use of VR and AR technologies be an outcome for the ICC when it comes to the protection and support of CRSV victims/witnesses before the Court and improved accountability of CRSV crimes?