The decision by a number of witnesses to pull out of two cases from Kenya currently before the International Criminal Court (ICC) has raised serious questions about the court’s ability to protect those who come to The Hague to testify.

In the separate cases against Kenya’s president, Uhuru Kenyatta and his deputy, William Ruto, ICC prosecutor Fatou Bensouda has repeatedly complained of widespread witness intimidation and interference.

Kenyatta and Ruto are both charged in connection with electoral violence that engulfed Kenya in late 2007 and early 2008. Joshua Arap Sang, a former journalist, is charged alongside Ruto. The three men stand accused of orchestrating attacks which killed more than 1,100 people and forced 650,000 others from their homes.

The future of the case against Kenyatta was thrown into serious doubt in December after three witnesses withdrew. Bensouda has asked judges for more time to investigate. One of the witnesses declined to testify because of fears for her and her family’s safety. Another witness withdrew last July citing “insurmountable security risks”.

This setback for the Office of the Prosecutor (OTP) came after it had been forced to withdraw charges against another Kenyan suspect in March 2013. Bensouda dropped the case against former civil service chief Francis Muthaura after a key witness recanted his testimony and others were too afraid to testify.

In the Ruto case, which started in September, Bensouda has asked judges to summon seven witnesses who have withdrawn their evidence, some citing security fears.

A number of those listed as due to testify in The Hague have spoken out about the threats they have received. (See Further Threats to ICC's Kenya Witnesses.)

Some of them accused the ICC of failing to provide adequate protection that would have allowed them to testify.

One Kenyan witness from the town of Eldoret in the Rift Valley spent six months in Uganda waiting to be taken to Europe.

“I feared going to testify because of many reasons, but mainly the way I was handled by the ICC which I felt was not taking care of my plight as should have been the case,” the witness told IWPR. “I met ICC officials several times and at no time did they indicate clearly how they were going to protect me before and after testifying…. How would I go to testify without knowing my fate or my future?”

Another witness, a woman from just outside Eldoret, was also not convinced that she would be safe after she gave her testimony.

“I lived in Tanzania for six months waiting for [the ICC] to communicate details on what was to happen to me as a witness, but no information was forthcoming,” she said. “Just hanging [around] for long in Tanzania exposed me greatly, because many people came to know that I was there.”

She too eventually decided to withdraw her evidence.

Besides the Kenya cases, there have also been other incidents where witnesses under the ICC’s protection programme have felt threatened or intimidated. Last year, four witnesses under the protection of the court’s Victims and Witnesses Unit (VWU) in the Democratic Republic of Congo (DRC) claimed that they had been sexually abused by a court staff member.

That individual has since been dismissed, but the incident raised questions about the VWU, which sits within the ICC Registry between the prosecution and defence services, and is supposed to provide equal protection for witnesses on both sides of a case.

In a report published in December, an independent panel that had been looking into the abuse allegations said, “Relevant and credible information suggests that the chronic and pervasive structural and financial shortcomings of the VWU contributed significantly to the alleged perpetrator’s ability to carry out the alleged criminal activity over a prolonged period of time”.

Some of the shortcomings highlighted include failings in the staff recruitment process, over-reliance on people from the local community and a lack of adequate training.

Herman von Hebel, the ICC’s registrar who commissioned the investigation, described the situation as “totally unacceptable”.

“Steps must be taken to strengthen internal procedures to make sure that this kind of incident never happens again,” he said.

Von Hebel has said that improving witness protection is a top priority, and is currently looking into how the VWU functions following recommendations made in a number of internal reports.

The number of witnesses in the ICC’s protection programme has doubled in the last year. With more than 700 people now under the court’s protection, there are some big challenges ahead. The figure includes both witnesses and their family members, the vast majority in Africa.

Some observers think that one of the problems with witness protection is that in the past, the ICC has tried to protect too many people rather than focusing on a core few witnesses who are crucial to a trial.

CHANGE IN STRATEGY



Court cases before the ICC have to date been reliant on witness testimony. Plans to commit mass crimes are generally undocumented and are known to only a few individuals. This means that alternative forms of evidence are often unavailable. So witness protection is firmly at the centre of how the court approaches investigations.

Michel de Smedt, the head of the ICC’s investigation unit, told IWPR that witness protection has become something of a Catch-22 situation.

“If you take risks with witnesses and their family, and something happens to them, then that can have a huge impact on the credibility of the court for other cases. But if you decide not to proceed because of concerns about witness security, then you might not be able to build a case,” De Smedt said. “I am convinced that when it comes to witnesses, it is better not to have a case and not to move forward, rather than take risks with people’s lives.”

A new investigation strategy which the ICC unveiled in October aims to shift the focus away from witness testimony to using other types of evidence such as forensic data. (ICC to Unveil New Investigation Strategy.)

Gérard Dive, who is in charge of judicial cooperation with the ICC for Belgium, says this could help the court both strengthen its cases and protect witnesses.

“It is better to concentrate on providing a good level of protection to those witnesses that matter most and then supplementing this testimony with evidence from elsewhere,” he said.

As part of its new strategy, the OTP plans to have its cases ready for trial much earlier in the process – if possible at the time of the confirmation of charges.

Gerhard Van Rooyen is Witness Protection Adviser at the United Nations Office on Drugs and Crime in Nairobi. He argues that this new strategy will also help protect witnesses, because the court will engage with them and offer protection at an earlier stage in the process, ideally before security threats have a chance to develop.

One area the investigation strategy does not address is the process for deciding whether a witness is eligible for protection or not.

Currently, both the prosecution and the defence lay out their arguments to the Registrar as to which witnesses need protection. The Registrar makes the final decision based on those arguments and on the assessment of VWU.

Van Rooyen argues that in line with the advice the UN gives national governments, it is the head of VWU and not the Registrar who should have powers of awarding protection. He points out that the Registrar is an administrator for a range of court issues, but not a specialist in security.

“If you are not security-inclined, how are you going to challenge a threat assessment?” Van Rooyen said. “If the chief of VWU is convinced that there is someone who needs to be protected, he should be the one to authorise it.”

At the VWU, a shortage of expert staff has limited its ability to properly understand the level of risk on the ground. The unit has a limited number of personnel to distribute between its headquarters in The Hague and the field, with eight situation countries to cover. With resources spread so thinly, it is sometimes hard to assess risk adequately.

Court insiders say that this has led to situations where staff relied too much on the views of the prosecution or defence – who have a vested interest in their witnesses being protected – rather than conducting their own risk assessments.

According to Van Rooyen, the VWU needs to “be much more operational” by having its own security branch with “boots on the ground” in any region of the world where the ICC is pursuing investigations.

“VWU needs to step up their ability,” he continued. “In this respect they need to understand that for every country they operate in, they need a victim and witness support and protection capacity. If OTP are looking into a situation, the VWU should be doing the same.”

The court is aware of these constraints, and von Hebel says his office is exploring ways of addressing them.

“We need to look at what we can do here in The Hague as well as strengthening our current capacity on the ground, including the quality of the staff that we employ,” he said.

Van Rooyen points out that by design, the ICC relies heavily on complementary support offered by the state where it is pursuing a case. In many instances, OTP’s staff cannot approach witnesses directly in “situation countries” without immediately putting them at risk.

In Van Rooyen's view, this approach is a huge weakness when it comes to witness protection. In particular, he said, intermediaries recruited within a given country after an investigation has begun were the court’s “Achilles heel”.

“The ICC is not in charge of its own procedures,” he said. “Without that [control] it is bound to fail.”

In the case against Kenyan deputy president Ruto, the OTP has filed charges against one of its former intermediaries for allegedly bribing witnesses not to testify.

According to Van Rooyen, intermediaries often know more than the OTP about the threats facing a witness, and they may manipulate this information.

“Although the OTP is doing their best to increase their operational capacity on the ground to address this weakness, it is still an area of concern,” Van Rooyen said.

For this reason, Van Rooyen argues that the VWU needs the in-house capacity to do an objective threat and risk assessment based on its own information, in addition to that carried out by the OTP.

“This way, the VWU will be better-informed and should be able to make better recommendations regarding the risk mitigation measures for a witness under threat,” he said.

MEMBER-STATE SUPPORT



For von Hebel, though, reform of the VWU is only part of the issue. He argues that a more fundamental problem is the need to establish an adequate network of member states that are willing to provide protective measures to witnesses.

“We are able to support witnesses at the moment, but we want to make sure that we have greater capacity for helping them in the future, so we are working on broadening the number of member states that are willing to give us support,” von Hebel said.

Such framework agreements are negotiated bilaterally between the ICC and member states, and typically lay out the procedural steps for what happens if the ICC needs to request that a witness be relocated.

Von Hebel declined to say how many member states had so far signed a framework agreement with the ICC on witness protection, but sources among Rome Statute signatories suggest that it is fewer than two dozen.

One source familiar with the workings of the VWU told IWPR that it can take years before a state gives the green light to relocate a witness. Without “effective and expeditious protection of key witnesses”, the source said, both the defence and prosecution investigations could be threatened.

Von Hebel insists that the VWU is able to cope with current demands for relocating witnesses – either temporarily or permanently – within a given country or abroad. But he sees trouble ahead if greater cooperation is not forthcoming from ICC member states.

“The biggest danger is that we will not have sufficient capacity to provide adequate protection for witnesses, which means that we would not be able to provide the guarantees that we feel are necessary. This could negatively impact on our ability to hold trials, since witnesses may not be so willing to testify if they know they cannot be protected.”

Witness protection has been provided by countries on an ad hoc basis, rather than through longstanding agreements with the court.

Roland Amoussouga, former head of the witness section at the International Criminal Tribunal for Rwanda (ICTR) in Tanzania, says that these informal agreements can work well providing that there is a good level of trust between the court and member states.

“In 20 years working with the ICTR, I didn’t see any written agreement with respect to witness protection, because most do not wish to have anything in writing. They prefer to have a workable understanding that helps drive witness protection forwards,” he said.

Von Hebel, too, argues that this can be effective, and says he has had success at other tribunals where he has worked by “combining these formal agreements with a large number of arrangements on a case-by-case basis”.

But not everyone thinks such informal arrangements are practical. Gérard Dive believes formal agreements are essential if relocation is to be successful and if it is to take place quickly enough to guarantee someone’s security.

“Realistically, few countries that have not already signed a framework agreement are prepared to take protected witnesses on to their territory,” he told IWPR.

“These agreements make things much faster and resolve many of the potential problems that are likely to emerge once a request [for protection] is made. Without such an agreement in place, witness protection is totally in the hands of the immigration authorities and the politicians of the day and a multiplicity of problems arise… the entire process is just too slow to provide for protection within the necessary timeframe,” Dive added.

However, the choice of country for relocation is important.

“You have to think about a witness’s comfort and well-being,” said Tiina Intelmann, current president of the ASP. “Bringing a witness who used to live in Africa to an unfamiliar environment where there are not many people from their own community would not contribute towards them leading a normal life, and would only serve to attract attention.”

Blake Evans-Pritchard is an IWPR contributor in The Hague and Simon Jennings is IWPR’s Africa Editor.

