A policy oriented approach to witness protective measures at the International Criminal Court

This thesis is a study of non-procedural witness protective measures at the International Criminal Court (ICC). Its aim is to examine policy formulation, legal interpretation and implementation of the ICC’s non-procedural witness protective measures from the perspective of policy oriented jurisprudence. The protection of witnesses (procedural or non-procedural) is crucial to the Court’s justice mechanism and the concept of witness protection has become firmly entrenched in the legal framework of the ICC. It enables the preservation of the Court’s much needed testimony. It further secures the safety, physical and psychological well-being, dignity and privacy of witnesses. The thesis argues that policy oriented jurisprudence, as a framework of inquiry that approaches international law as a decision-making process, has the potential of offering alternative solutions to the ICC’s witness protection system. It argues that such solutions should be systematically considered on the basis of shared interests and the expectations of the world community of states parties to the Rome Statute. Through this approach, the thesis argues that although the ICC witness protection system exists, its mechanism is not working effectively. Policy formulation, legal interpretation and implementation have been compromised as a result of numerous challenges. These challenges have included lack of coordination, uncertainty and confusion among the ICC’s organs, namely the Office of Prosecutor (OTP), the Victims and Witnesses Unit (VWU), the Chambers, and the Defence. Further challenges have included difficulties in the interpretation of the concept of ‘appropriate protective measures’ and the relocation of incarcerated, infiltrated and polygamous witnesses. Through an analysis of witness protection decision-making by the Chambers, the OTP, the VWU, the Defence and all those collaborating with the Court in the protection mechanism, decision-making regarding law and policy for witness protection is examined in depth on the basis of relevant case law, statutes, rules and practice. The actual practice of the ICC’s non-procedural witness protective measures is investigated through a fieldwork project involving a three months period of qualitative research encompassing fourteen (14) elite interviews of the ICC decision-makers involved in the witness protection system at The Hague. The thesis ends with detailed examination of how current problems with non-procedural witness protective measures could be overcome. This could ensure protection from interference, improved witness support and effective operation of the Court’s witness protection system.