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May 3, 2013

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Human Rights, International Criminal Court, Jurisdiction, Jurisprudence, Rome Statute

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Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian

[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.

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May 2, 2013

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Reflections on Victims Participation in the Lubanga Judgment

By: Goldah Nekesa Matete*

On 14 March 2012, Thomas Lubanga Dyilo (“Lubanga”) was convicted of committing, as co-perpetrator, war crimes consisting of enlisting and conscripting of children under the age of 15 years into the Force patriotique pour la libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 1 September 2002 to 13 August 2003 punishable under article 8(2)(e)(vii) of the Rome Statute (”Statute”).[1] Trial Chamber 1 (“Trial Chamber”) of the International Criminal Court (“ICC) rendered the unanimous judgement with two judges issuing separate dissenting opinions on some issues.

Article 68 of the Statute makes provision for the protection of the victims and witnesses, and their participation in the proceedings, at the ICC. The Statute effectively grants the victims the locus standi to take an active part in the proceedings as individual legal persons.

In the Lubanga trial there were a total of 129 victim participants authorised by the Chamber, 34 of which were female and 95 were male.[2] The Chamber divided the victim participants into two groups, each one represented by a Common Legal Representative.[3] In addition the Chamber authorised the Office of Public Counsel for Victims (OPCV)[4] to represent four more victims.[5]The 129 victims participated in the proceedings by introducing evidence, questioning witnesses, and advancing written and oral submissions.[6]

Following the victims’ application for participation in the proceedings, the Trial Chamber issued a decision (Judge Blattman separately and partially dissenting)[7] allowing them to participate in the proceedings even though some did not have official documents of identification.[8]This decision was appealed before the Appeals Chamber, mainly concerning the issue of victims producing formal identification before being authorised to participate in the proceedings. The Appeals Chamber partially reversed the decision, holding that the applicants could prove their identity by way of a range of official and non-official documents, based on the situation in DRC Congo and potential difficulties in obtaining and producing official copies of identity.[9] The Appeals Chamber further held that:

(i) a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss;[10](ii)  participation by the victims must be in accordance to the provisions of Rule 89(1)[11] of the Rules; (iii) the applicants must demonstrate a link between the harm they suffered and the crimes faced by the accused;(iv) the applicants should demonstrate in written application that they are victims of these offences,[12] and that their personal interests were  affected.[13]

The Appeals Chamber also gave the victims’ the rights: to consult the record of the proceedings, including the index subject to confidentiality restrictions; to receive notification of all public filings and those confidential filings which concern them; to request the Chamber to use its broad powers to call all the materials it considers relevant for the determination of the truth; to participate in public hearing;  to file written submissions, and a right for anonymous victims to participate in the proceedings.[14]

The Chamber granted all 129 applicants the right to participate in the proceeding. All the applicants claimed to have suffered harm, either as a result of, the crime of enlisting and conscripting children under the age of 15 into the FPLC, or their use to participate actively in the hostilities, and others as a result of sexual violence,[15]torture and other forms of inhuman treatment which are not subject of the charges against Lubanga.[16]

Most of the victims were former child soldiers, although some are parents, or relatives of former child soldiers, and one is a school.[17] Some children were also granted rights to participate directly without an adult or legal guardian representing them.[18]Most of the victims in this case were provided with protective measures, in particular, anonymity, because of their vulnerable position living in areas of ongoing conflict.[19]Out of the total 129 victims, only 23 have been disclosed to the parties in the proceedings.[20] The Chamber also granted some victims dual status of victim and witness,[21]ruling that dual status persons do not accrue rights above and beyond those who are solely victims or witnesses.[22] The four victims represented by the OPVC were dual status victims; three gave evidence as witnesses during the trial on behalf of the School.[23] These three witnesses were provided in-court protective measures that included voice and face distortion and pseudonyms.

 

PARTICIPATION

The Rules of Procedure and Evidence (“Rules”) of the ICC provide for a definition of victims as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”[24]Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”[25]

The definition provided by the Statute restricts the of ‘victims’ to only those that have suffered harm as a result of the crimes charged; there must be a causal connection between the alleged crimes and the harmful results.[26]However the Chamber in its judgement relied on principle 8 of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”as adopted and proclaimed by the General Assembly Resolution 60/147, to propoundabroad definition of the meaning of “victim.” The adopted definition reads as follows: “[s]omeone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury or emotional suffering or economic loss.” Inthe same vein, the Chamber gave rights to former child soldiers, parents, a school, relatives and legal guardians.[27]It is instructive to note that the Chamber treated the child soldiers as victims and not participants in the crime at this point, and persons who suffered under the hands of the victims were not considered victims within the set out definition of the Trial Chamber.[28]

This chosen definition broadens the characterization of victims to include those who were not directly harmed but suffered the damage as third parties. It has been argued elsewhere[29] that this is a correct approach in light of the huge collateral impact of international crimes on third persons and their immense emotional and psychological suffering. However, such a broad approach requires a comprehensive strategy to limit the number of indirect victim participants. Some scholars like Stefanie Bock suggest that indirect victim participants should in addition demonstrate the personal relationship between themselves and the direct victim, as well as provide evidence demonstrating the extend of emotional or physical harm they have suffered.[30]

It appears that the prosecution focused on the definition provided for in the Rules in charging Lubanga, hence the focus on the crime of enlisting and conscription of child soldiers, and entirely leaving out sexual offences crimes, which had a great number of victims who suffered as a consequence of the crime of enlisting and conscription of children under the age of 15 into FPLC.[31] It is indeed worth noting that the Chamber exercised its discretionary powers in allowing persons to participate in the proceedings as victims, and even then, it failed to confine itself to the strict definition of victims resulting in the broad range of person who participated as victim participants.[32]

During the Confirmation of Charges hearing, the Pre-Trial Chamber in assessing the application for victim participation did so, on a prima facie basis in consideration of the provisions provided in the Rules,[33] and not on the known legal threshold of “beyond reasonable doubt”which requires a high standard of proof. This is because, at the time of confirmation of charges hearing, it is not clear whether the alleged crimes have actually been committed by the accused or not, since the standard applied to refer a case to the Trial Chamber is on a prima facie basis.[34]

Some of the witnesses (witness P-0007, P-0008, P-0011 and P-0298) who were granted permission to participate in the proceedings,[35] as the information at that time, was sufficient to establish on a prima facie basis that they were victims,[36] lost their right to participate in the proceedings when the majority of the judges sitting on the case came to the conclusion that they were not reliable and they did not give accurate information to the Chamber.[37] Similarly the Chamber withdrew the right of P-0298 to participate in the proceedings while he had initially been permitted to as an indirect victim based on the information that his son had been recruited as a child soldier.[38] The Chamber withdrew his right to participate in the proceedings after hearing evidence that his son had in fact not been recruited as a child soldier. The Chamber, in my view, failed to correctly distinguish the roles played by dual status victim witnesses, thereby, incorrectly withdrawing the right to participate in the proceedings of these victims by assessing their victim status on a “beyond reasonable doubt” standard.

Rightly so, the Chamber’s decision to grant a person rights to participate in the proceedings at the Pre Trial phase should not be final. If the Chamber in its further investigation concludes that its prima facie assessment was incorrect, it should discharge and or appropriately amend any earlier order as to the participation, to the extent necessary.[39] This approach strikes a balance between unnecessarily restricting victims’ admission to the proceedings and the defence interest not to be unduly laboured with participants who are not victims strictly speaking.[40]

However Judge Elizabeth Odio Benito was of a different opinion as regards taking away the right to participate of victims whose testimony as witnesses was contradictory. [41] She states with regards to the victim witnesses who testified, “[t]hat […] the contradictions and weaknesses of these two individuals as witnesses in the proceedings should not affect their status as victims with the right to participate in the trial proceedings.”[42] Judge Odio Benito was of the opinion that with respect to the dual status victim witnesses, and based on the fact that different standards of proof are adopted (i.e. in the case of witness testimony, the standard is beyond reasonable doubt to establish whether an accused is guilty or not whereas in the case of a victim, a prima facie standard is adopted) it is incorrect to adopt the beyond reasonable doubt standard in determining whether a victim should continue exercising their right to participate in the proceedings or not based on their testimony as witnesses.[43]She also points that it is unfair to impose upon individuals with dual status a higher threshold as regards their victim status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chambers.[44]It is on this basis that she concludes that the inconsistencies in the victim witnesses’ testimony do not necessarily mean that their evidence as to being victims should not be relied upon.

In light of an examination of the Statute, Rules, Regulation, academic works and case law one can conclude that the first judgement of the ICC is not entirely satisfactory vis-a-vis the protection of the interests of victims and victim witnesses. Indeed it would seem the court failed to develop watertight jurisprudence to safeguard the rights of victims and in particular, victim child soldiers.

I submit that the first error made by the Bench sitting on this case was that it failed to critically examine and analyse most issues at the Trial stage and instead relied heavily and sometimes almost entirely on the Confirmation of Charges Decision. This led to subsequent mistakes in the final decision. For instance, protection regimes adopted for victims were not addressed again at all at the trial stage and the Trial Chamber adopted in toto the position which was taken by the Pre Trial Chamber ruling out an independent legal and factual analysis on the same.

The Chamber’s choice to disregard the sexual violence crimes merely because they were not included by the prosecution in the charges against the accused was a disservice to the victims of the crimes of which Mr. Lubanga was found guilty. I agree with Judge Odio Benito’s dissenting opinion that sexual violence and enslavement are illegal acts and are directly caused by the illegal crime of enlisting, conscription and the use of children under the age of 15 years. The ICC’s constitutive and procedural regime establishes a high standard for the protection of victims and witnesses and for the Court to give anything less than the high standards is impermissible. It would seem, from the said decision, that the court developed jurisprudence that limited its powers to punish crime and especially sexual crime that was proven beyond reasonable doubt to be committed, but where the prosecution in a most astounding error failed to include in its charges. Should the Court turn its back on clear and evident crimes committed that fall within its jurisdiction merely because the said crimes were not incorporated into the charges against an accused(s) person(s)? Certainly not. It is instructive at this stage to note that many countries around the world have criminal jurisdictions in their municipal laws that allow a court to punish lesser offences even when they were not incorporate in the charges but the same were proved during trial. The Trial Chamber could have incorporated this approach in this respect, since the Legal Representatives of Victims, severally raised the issue of sexual crimes during trial, and the Defence had a chance to provide rebuttal evidence. Should one argue that this would be prejudicial to the accused, then; an accuseds’ rights should not defeat justice and truth at any time or else it will be a sad day for justice, and especially to the victims who suffered the heinous crimes.

The Chamber is the custodian of the law and the interest of all parties involved in a trial. However, it does look like the Chamber was more aligned to protecting the rights of the accused as opposed to balancing the rights of all parties; it’s based on this that the Chamber treated victim witnesses as witnesses hence the taking away the rights of some of them to participate in the proceedings. As discussed above, I agree entirely with the sentiments put forth by Judge Benito regarding this issue and add that, fair trial should be that and nothing else, to apply different standard to a party in a trial is in itself a violation of the principle of fair trial.

One of my greatest concerns is the failure of the Chamber to offer a legal definition of active participation. The adopted ‘case by case’ approach shows that the Chamber did not simply want to engage in a conclusive discussion hence they opted to leave the definition open. This case was mainly focused on the concept of active participation, and not having a definition at the end of the judgement is unsatisfactory. The Chamber had a chance to set down a legal definition that would have gone into setting down the Courts jurisprudence on the same, but instead it opted to leave it for the future. The failure to have a definition in essence means none of the questions have been comprehensively answered, and in particular, whether child soldiers engaging in hostilities makes them active participant or not. It is understandable to protect them and categorise them under victims, but in so doing a comprehensive definition as well as an approach for future cases should have been made.

It is however very encouraging to note that the Trial Chamber sought and resolved to inculcate Victim Participation in the trial. I also applaud the Chambers for ensuring that the victims got a chance to participate actively in the Trial, and they had a chance to express their needs and interests to the Court.  A lot needs to be improved especially with respect to the numerous delays due to putting together relevant regimes for victim participation and the overall conduct of the trial. Since the law is a living instrument, then I have reason to be optimistic that jurisprudence in the afore-discussed paper shall develop towards a more appropriate system that will encourage victim participation in a more effective manner.

 

 

* Holds a Masters of Laws, (LL.M) degree in International Crime and Justice from UNICRI, a United Nations institute in Turin, Italy; a Bachelor of Laws (LL.B) from Moi University, Kenya, and a Post Graduate Diploma in Law from the Kenya School of Law. Goldah is also an Advocate of the High Court of Kenya. She currently works and resides in The Hague and can be reached at, goldah.nekesa@gmail.com

[1]Information retrievable on the International Criminal Court website at http://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf, last visited 14 April 2013.

[2]Prosecutor v Thomas Lubanga Dyilo,Decision on Victims’ Participation, 18 January 2008, (“18 January 2008 Victims’ Participation Decision”), para. 32.

[3]Prosecutor v. Thomas Lubanga Dyilo, Trial Judgement (“Lubanga Trial Judgement’’), 14 March 2012, para. 14; Kai Ambos, ‘The first Judgement of the International Criminal Court; A Comprehensive Analysis of the Legal Issues, (2012) (“Kai Ambos”).

[4]See more information on the OPCV at:

http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Victims/Office+of+Public+Counsel+for+Victims/; The manual at http://www.icc-cpi.int/iccdocs/PIDS/OPCV/OPCVManualEng.pdf last visited on the 15 June 2013; Paolina Massida and Sarah pellet, “Role and Mandate of the Office of the Public Counsel for the Victims” in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International Criminal Court (Nijhoff, Leiden, 2009) 690; Regulation 80(2) of the Regulations of the Court;  Regulation 81 of the Regulation of the Court on the support role of the OPCV to the Legal Representatives for victims.

[5]Lubanga Trial Judgement, para. 32.

[6]This was done by the leave of the Chambers, Lubanga Trial Judgement, para.13.

[7] 18 January 2008 Victims’ Participation Decison, para. 32.

[8]18 January 2008 Victims’ Participation Decision,para. 14.

[9]Prosecutor v. Thomas Lubanga Dyilo,Judgement on the Appeals of the prosecutor and The Defence against the trial Chamber 1’s Decision on Victim Participation of 18 January 2008, ( “11 July 2008 Appeals Decision on Victim Participation”) 11 July 2008, para.

[10]Lubanga Trial Judgement, para. 14; The Trial Chamber , based on the Basic Principles and Guidelines on the Rights Law and Serious Violations of International Humanitarian Law Adopted by the United Nations General Assembly, Resolution 60/147, 16 December 2006, Principle 8.

[11] The Chamber in exercising its discretion, can reject the victims’ application to participate in the proceedings, or limit them to specific issues, or allow the application and give them rights including, to make opening and closing statements. In case where the application is rejected, a fresh application can be made following the same procedure by the victim; Rule 89(3).

[12]Lubanga Trial Judgement, para, 14.

[13]Lubanga Trial Judgement, para.14.

[14]Lubanga Trial Judgement, para. 14.

[15]30 victims (18 female and 12 male) referred to acts of sexual violence which they either suffered or witnessed; Lubanga Trial Judgement fn 54.

[16]Lubanga was only charged for the crime of enlisting and conscripting children under the age of 15. Sexual offences were not prosecuted and neither were torture and other forms of inhuman treatment charged.

[17]Lubanga Trial Judgement, para. 17.

[18]Prosecutor v. Thomas Lubanga Dyilo, Corrigendum to Decision on the applications by victims to participate in the proceedings, 13 January 2009, paras 67-72.

[19]Lubanga Trial Judgement,para. 18.

[20]Lubanga Trial Judgemtn, para. 18.

[21]18 January 2008 Victim Participation Decision, paras 132-134.

[22]Prosecutor v. Thomas Lubanga Dyilo, Decision on Certain Practicalities Regarding Individuals who have the Dual Status of Witness and Victims, 5 June 2008, para. 52.

[23]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Request by Victims a/0225/06 and a/229/06 and a/270/07 to Express Their Views and Concerns in Person and to Present evidence during the Trial, 9 July 2009 (Public Document), paras 39-40; Lubanga Trial Judgement, para. 21.

[24]Rule 85(a).

[25]Rule 85(b).

[26]Kai Ambos.

[27]Prosecutor v Thomas Lubanga Dyilo, Redacted Version of Decision on “Indirect victims” ,Trial Chamber 1, 8 April 2009, para.52.

[28]Lubanga Trial Judgement , para.14.

[29]See Kai Ambos, p.2.

[30] Stefanie Bock, das Opfer Vordem International en Strafgerichtshof (Ducker &Humblot, Berlin, (2010) pp 446-      447.

[31]Lubanga Trial Judgement, para.16; See also note 15 above.

[32]Lubanga Trial Judgement, para.16.

[33]Lubanga Trial Judgement, para.15.

[34] Situation in the Democratic Republic of the Congo, Decision on the Application for the participation in the Proceedings, January 2006, paras 97-98; Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, 29 January 2007, (“Lubanga Confirmation Decision”), paras 1,15.

[35]Prosecutor v. Thomas Lubanga Dyilo, Decision on the Application of victims to participate in the proceedings, 15 December 2008.(“ 15 December Decision on Victim Participation”)

[36] In accordance to, Rule 85 of the Rules.

[37]Lubanga Trial Judgement, para, 484.

[38]Prosecutor v. Thomas Lubanga Dyilo,Decision on the supplementary information relevant to the application of 21 victims, 21 July 2009, (“21 July Decision”) para.39.

[39]See for Example, Prosecutor v. Thomas Lubanga Dyilo, (“Lubanga Trial Judgement”), para485.

[40] See also Kai Ambos, p. 15.

[41]Prosecutor v. Thomas Lubanga Dyilo, Separate and Dissenting Opinion of Judge Odio Benito (hereinafter Judge Benito’s Dissenting Opinion attached to the Judgement, (“Judge Benito’s Dissent”) para.25.

[42]Judge Benito’s Dissent, paras 25-26.

[43]Judge Benito’s Dissent, para. 26.

[44]Judge Benito’s Dissent, para.35.

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April 30, 2013

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International Criminal Court, Jurisprudence, Rome Statute

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Do Not Touch My President

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya respectively brings again to the foreground the issue of immunity from prosecution. The two are currently suspects of international crimes facing charges at the International Criminal Court. Do they, by virtue of their current status, enjoy any immunity-whether functional or personal-from prosecution by the International Criminal Court? This question, especially in light of the provisions of the Rome Statute, might seem to be obviously in the negative. After all the provisions of Article 27 are patently unambiguous:

“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

One must applaud the attempt by the drafters to ensure that impunity is fought on all fronts. True, criminals should not be allowed to use their positions to hide from the natural consequences of their actions. The echo of this call comes all the way from the Nuremburg Military Tribunal. Indeed even the United Nations General Assembly affirmed the Nuremburg principles by resolution thus:
“(1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law” (i)

The ICC itself has also had occasion to ruminate on the question of the immunity of a serving head of state. In the Bashir case(ii) on an application for warrants of arrest against the current President of Sudan, the court stated that the “current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case…(since) one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole which, must not go unpunished”(iii) . Thus, President Bashir became the first sitting head of state to face criminal charges in an international court.
Whereas the court’s reading of the law in the Bashir decision seems prima facie correct there was a lost opportunity to provide further guidance on an otherwise still grey area. If a head of state is indicted, for example, what privileges is he entitled to during the trial? Surely the individual who is the personification of an independent sovereign state should not have the same treatment as a common criminal. It would make sense, for example, to allow the head of state to forego all but very necessary appearances in court in light of his/her often punishing work schedule and, more importantly, so as to ensure that the lives of the nation are not held in suspense for years as the trial proceeds. It would also seem appropriate to allow the head of state to waive, if s/he chooses, any personal appearances in court so as not to embarrass the state concerned.
I also submit that the supposed removal of the immunity of heads of states is not without exceptions. Article 98 of the Rome statute for example provides as follows:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”

If therefore, for example, the government of Sudan has a bilateral agreement with say the government of Malaysia where each country agrees not to release the other country’s citizens to the ICC then Bashir’s immunity would prevail whenever he visits Malaysia. A warrant of arrest to all and sundry, such as the one issued by the Bashir court is therefore questionable.
If the immunity of heads of states is taken away then how, pray tell, do we deal with the other treaties that provide protection to them? What of customary international law that provides that heads of states are “untouchable”? The Vienna Convention on Diplomatic Relations 1961 for example, provides that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”(iv) . The rationale for this is simple: the diplomat represents the sending State. The principle of sovereign equality of States would therefore not countenance a situation where the host state arrests or charges the diplomat. Similarly, what applies for the diplomat would apply to the head of state. It would be a legal misnomer for the diplomat to be protected in order to preserve the “purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations”(v) while not affording the same level of protection to the heads of state. If, as has been decided, a host state cannot arrest or charge diplomats or heads of states in the national courts (vi), they should also not be able to arrest them at all (vii). The principle of sovereign equality of states is applicable at all times. Since there is no “international police force” any State that attempts to arrest a sitting head of state would be interfering with a cardinal principle of international law. Evidently therefore “the exercise of jurisdiction of international criminal courts can have serious consequences for the sovereign equality of states and the intercourse of international relations…just like the exercise of jurisdiction by domestic courts over foreign State officials, the ICC’s exercise of jurisdiction in such cases can engender severe repercussions for the fabric of inter-state relations. The exercise of jurisdiction by, the Court will affect, and be affected by, the same considerations of State sovereignty that inform the doctrine of head of state immunity and its application before domestic courts”(viii)

Lastly the practicality of removing the immunity of a sitting head of state is in doubt. Intricate relationships among states cannot allow this. With the knowledge of the repercussions of any attempt to arrest any sitting head of state, nay any senior government official, who, pray tell, would bell the cat?
_________________________________________________________________________(i) General Assembly Resolution, Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal 95(I), 11 December 1946.

(ii) In the Case of the Prosecutor V. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”)- Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09

(iii) Ibid para. 41-42

(iv) Article 29

(v) Preamble to the Convention

(vi) Heads of States immunity from the jurisdiction of national jurisdiction has been affirmed by the ICJ in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France). For more see Immunities of State Officials, International Crimes, and Foreign Domestic Courts by Dapo Akande and Sangeeta Shah, EJIL (2010), Vol. 21 No. 4, 815–852- http://www.ejil.org/pdfs/21/4/2115.pdf

(vii) Admittedly, in the case of Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 the court held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” But, since Mr Taylor was no longer serving as a head of state at the time, the considerations were different.

(viii) The Survival of Head of State Immunity at the International Criminal Court, Wardle, Phillip, Australian International Law Journal, Vol. 18

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April 27, 2013

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International Criminal Court, Rome Statute

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Why India Continues to Stay Out of ICC?

Written by Garima Tiwari

ICC, Author Vincent van Zeijst

 

 

“We can understand the need for the International Criminal Court to step in when confronted by situations such as in former Yugoslavia or Rwanda, where national judicial structures had completely broken down. But the correct response to such exceptional situations is not that all nations must constantly prove the viability of their judicial structures or find these overridden by the ICC.” – Indian delegate said in his official statement delivered at the Diplomatic Conference.[i]

Years after the establishment of International Criminal Court (hereinafter “ICC”) India has no indication of becoming a State Party to the Statute. The establishment of the ICC came out of the need for an independent, permanent criminal court to deal with heinous crimes of international concern. India’s decision to remain out of ICC is not something of an aberrant stand it took. Even when the International Military Tribunal for the Far East was established after the surrender of Japan at the end of Second World War, Dr. Radhabinod Pal, Judge from India gave a Dissenting Judgment .He refused to be bound by the charges brought against the defendants by the Prosecution. Consequently, Justice Pal declared the accused Japanese leaders innocent of all charges. [ii] This dissenting judgment of Justice Radhabinod Pal at the International Military Tribunal for the Far East) is of unique importance in the history of international law as a new interpretation of contemporary (i.e. history of the pre-second World War era) history of international events.[iii] Under the Charters of the Nuremberg and Tokyo Tribunals, radical changes were made in the definitions of international laws. These tribunals made definitions of new offenses and held individuals in power responsible for perpetrating such offenses. Justice Radhabinod Pal from India, however, refused to be carried by such an innovation. Justice R.B. Pal, however, vehemently opposed the changing concepts of international law.  In his judgment, he made a critical and detailed study of the status of international law in the first half of the twentieth century and argued that international law could not be changed by mere ipse dixit (dogmatic pronouncement) of the authors of the Charter in question.[iv]

At the time of the drafting of the Rome Statute, some of the fundamental objections given by Indian delegates in their opposition to the Court relate to the perceived role of the UN Security Council and its referral power. India has therefore, not signed and raitifed the statute. As mentioned by Mr. Lahiri, the principal objections of India to the Rome Statute have been the following:  [v]

  1. Made the ICC subordinate to the UN Security Council, and thus in effect to its permanent members, and their political interference, by providing it the power to refer cases to the ICC and the power to block ICC proceedings.
  2. Provided the extraordinary power to the UN Security Council to bind non-States Parties to the ICC ; this violates a fundamental principle of the Vienna Convention on the Law of Treaties that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
  3. Blurred the legal distinction between normative customary law and treaty obligations, particularly in respect of the definitions of crimes against humanity and their applicability to internal conflicts, placing countries in a position of being forced to acquiesce through the Rome Statutes to provisions of international treaties they have not yet accepted.
  4. Permitted no reservations or opt-out provisions to enable countries to safeguard their interests if placed in the above situation.
  5. Inappropriately vested wide competence and powers to initiate investigations and trigger jurisdiction of the ICC in the hands of an individual prosecutor.
  6. Refused to designate of the use of nuclear weapons and terrorism among crimes within the purview of the ICC, as proposed by India.[vi]

India has ratified Geneva Conventions and has even enacted Geneva Conventions Act 1960, but in practise, India has decided to overlook Common Article 3 in its special enactments, applicability and Supreme Court rulings. Moreover, it is normally and more extensively argued that at no point has the situation in India met the threshold required for the application of Common Article 3. Thus, India has not accepted the application of Common Article 3 of the Geneva Conventions to the situations prevailing in the country.

There are reports on hundreds of mass graves in Kashmir[vii]. Torture, hostage-taking, and rape have all been prominent abuses in the Kashmir conflict. Both security forces and armed militants have used rape as a weapon: to punish, intimidate, coerce, humiliate and degrade, but no we do not meet the threshold of Common Article 3.There is widespread and frequent fighting throughout Kashmir, recourse by the government to its regular armed forces, the organization of insurgents into armed forces with military commanders responsible for the actions of those forces and capable of adhering to laws of war obligations, the military nature of operations conducted on both sides, and the size of the insurgent forces and of the government’s military forces, which makes Common Article 3 is applicable to the conflict in Kashmir[viii]-but still Indian government argues that it does not meet the threshold for application of Common Article 3. This is because India has viewed the conflicts it has been beset with as domestic affairs, if above the ‘law and order’ level but certainly below that of a non-international armed conflict. As we know the definition of Non international armed conflict not having been attempted in Common Article 3, the threshold of its applicability is pitched high by domestic states. Governments are understandably reluctant because of sovereignty considerations to concede belligerency opportunities for the non-state groups who they accuse of posing an armed challenge to the state. [ix]This reluctance is despite Common Article 3 stating that its application ‘shall not affect the legal status of the Parties to the conflict.’[x]

Another example is, Armed Forces (Special Powers) Act, 1958 [xi]( hereinafter ‘AFSPA’), passed when  the Naga movement in the North eastern States for independence had just taken off. AFSPA has just six sections. The most damning are those in the fourth and sixth sections: the former enables security forces to “fire upon or otherwise use force, even to the causing of death” where laws are being violated. The latter says no criminal prosecution will lie against any person who has taken action under this act. While article 3 prohibits killing of innocent civilians in non-international armed conflict, AFSPA under section 4(a) gives wide ranging powers to the armed forces to use force to the extent of causing death on mere suspicion. This has occasioned the application of AFSPA without resorting to the emergency provisions that would then invite its accountability externally. In last 54 years, not a single army, or paramilitary officer or soldier has been prosecuted for murder, rape, destruction of property (including the burning of villages in the 1960s in Nagaland and Mizoram). [xii]There has been regrouping of villages in both places: villagers were forced to leave their homes at gunpoint, throw their belongings onto the back of a truck and move to a common site where they were herded together with strangers and formed new villages. It is a shameful and horrific history, which India knows little about and has cared even less for. [xiii]  There are extrajudicial executions, made emphatically in the north east region, which Government normally remains silent about. Justice Jeevan Reddy committee recommended the repeal of the AFSPA in 2005 but the findings and recommendations are buried as the government has neither taken a call on them nor made them public.[xiv]

Various reports, academic views as well as conferences, have  time and again highlighted the need for India to actually accept the common article 3 in practice. The Judiciary has failed its duty in this context by overlooking ‘judicial guarantees’ as required by the article. [xv]The situation of conflict that persists in Kashmir and the North-East explains the reasons for the state’s anxiety that this manner of violence could be referred to the ICC. Always arguing that the threshold  has not reached, India continuously evades application of Common Article 3. Some help  could have been taken from Additional Protocol II,where a lower threshold in found under Article 1(2) but India has not ratified the same. Even, the inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 of the Statute for an ICC met with resistance from the Indian establishment.

There is a mild fear that if India signs Rome statue it would come under the jurisdiction of ICC under Common Article 3 and crimes against humanity during non-international armed conflict. This may be said to be a major reason for staying out of ICC since Articles 7 and 8 of the Rome Statute include such crimes, and no reservations are permitted, except the opt out provision  under Article 124 of the Statute . As Mr. Lahiri notes, “having become Party to so many human rights conventions, which requires India to submit a variety of periodic reports for UN scrutiny on domestic actions to implement these obligations, it is scarcely appropriate that India should assert impunity for the commission of the most heinous crimes imaginable in the course of combating domestic insurgencies.” [xvi] India also looks for an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council.[xvii]

Maybe in the future meetings of the ICC Assembly of Parties could well consider, for example, extending the Kampala ‘opt-out’ provisions .  Discussions on inclusion of terrorism and nuclear weapons are already taking place. [xviii]  Prosecution of Indian officers , leaders and army by ICC, is an overstretch and the jurisdiction over India under the UNSC referral process is possible even if India stays out of ICC . [xix] India should immediately ensure substantive and effective participation in ICC deliberative and negotiating bodies which it is entitled to attend as an observer. [xx] Most of the objections and concerns seem to have waned over the years. Moreover, heightened activities on the ICC in India in the past year have generated greater participation and interest from diverse constituencies including parliamentarians, academia, media and various civil society groups.[xxi]

India has been subject to international dispute settlement bodies, such as the Dispute Settlement Body of the World Trade Organization and the International Court of Justice, amongst others. State sovereignty is not compromised merely because a nation-state agrees to subject itself to an international court that can exercise jurisdiction over its officials. [xxii]Several legal provisions found in the Indian Constitution and the criminal laws of India are antecedents to many of the principles found in the Rome Statute – the presumption of innocence, principle of legality, proof of guilt beyond reasonable doubt, fair trial, legal aid and the right to remain silent, amongst others.[xxiii] Thus, India might have seriously misjudged the legal, political and social repercussions of opposing the Rome Statute, and risks further erosion of credibility if it altogether repudiates the Statute, and with it, its sizable practical advantages for protecting the dual interests of its nationals as individuals serving their country abroad, and of its national security.[xxiv]

Till India signs the Rome Statute it must be stated that the standards set by the Rome Statute could be of use in the region regardless of its poor record of ratification. For instance, the Rome standards have been used to promote law reform at the national level in India, as well as to provide redress to victims before national Courts in Sri Lanka. Thus, as mentioned in the ICC Outreach, although the importance of the Court in fighting impunity worldwide is undisputable, the ICC also exists as a tool to strengthen national legal systems and provide redress to victim. [xxv]

 

[i] India and the ICC, Usha Ramanathan, available at http://www.ielrc.org/content/a0505.pdf

[ii] Judgment of Justice Radhabino Pal at the Tokyo War Crimes Trial, 1946-48, A. F. M. Shamsur Rahman available at http://www.asiaticsociety.org.bd/journals/June_2010/contents/04_AFMShamsuRahman.htm

[iii] R. John Pritchard & Sonia M. Zaide (eds.), “The Dissenting Opinion of the Member for India R.B. al” inThe Tokyo War Crimes Trial, (New York & London: Garland, 1981), Vol. I. p. 21

[iv] Supra n.2

[v] Dilip Lahiri, Should India continue to stay out of ICC? (published on 24 November 2010) Available at http://www.orfonline.org/research/should-india-continue-to-stay-out-of-icc/

[vi] Ibid

[vii] http://www.kashmirprocess.org/reports/graves/BuriedEvidenceKashmir.pdf

[viii] India’s Secret Army in Kashmir, New Patterns of Abuse Emerge in the Conflict http://www.hrw.org/reports/1996/India2.htm#P211_52287

[ix] Roderic Alley, “Internal Conflict and the International Community: Wars without end?”, Aldershot: Ashgate Publishing Company, 2004, p 120.

[x] Common Article 3 states: ‘The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

[xi] The Armed Forces (Special Powers) Act  1958 available at http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf

[xii] Sanjoy Hazarika, An Abomination Called AFSPA,Febryary 12, 2013, The Hindu available at http://www.thehindu.com/opinion/lead/an-abomination-called-afspa/article4404804.ece

[xiii] Ibid

[xiv] Sanajaoba, Armed Forces Special Power Act, 1958- A Law for Extra judicial Execution in Perpetuity, at http://openspace.org.in/node/461

[xv] Ibid

[xvi] Supra n. 5

[xvii] Supra n. 1

[xviii] Jane Boulden,Thomas G. Weiss, Terrorism and the UN: Before and After September 11, Indiana University press, (2004) p. 65-66

[xix] Supra n 5 ( refer conclusions)

[xx] http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl1807/18070670.htm; http://www.sikhsangat.com/index.php?/topic/38139-why-india-rejects-the-international-criminal-court/

[xxi] Coalition of International Criminal Court,India, at http://www.iccnow.org/?mod=country&iduct=77

[xxii] Abraham, What Are we Scared of? Available at http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=5471

[xxiii] Ibid

[xxiv] Rishav Banerjee, Rome Statute and India: An Analysis of India?s Attitude towards the International Criminal Court, Journal of East Asia & International Law › Nbr. 4-2, October 2011

[xxv] The ICC can wait, Justice Cannot , available at http://www.un.int/india/2011/ind1953.pdf

 

 

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April 17, 2013

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Bangladesh Tribunal (ICT), Extraordinary Chambers of Cambodia, ICTR, ICTY, International Criminal Court, Special Court for Sierra Leone, STL

Witness Protection and the ICT in Bangladesh

Written by: Umme Wara, Lecturer of Law, Jagannath University

The free and truthful participation of witnesses to testify before the Court largely depends on the protective and security measures provided by the concerned Court in any crimes Tribunals as witnesses always have some reasonable fear to be suffered furtherance by the defense party. Since 2010, when Bangladesh started the trial of war criminals the security issue of those who testify became an imperative issue to be determined through relevant national instruments and international experiences. In this regard we will look in to the measures for witness and victim protection in other international and hybrid tribunals as well as the International Crimes (Tribunals) Act (ICT), 1973 which can be referred to the proposed law on victim and witness protection as further edition.

The witness and victim protection and support provisions of international and hybrid criminal tribunals: The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL) inserted provisions for victims and witness protection where the Rules of Procedure and Evidence provided policies to implement those provisions of the statutes effectively. For example, Article 68 of the Rome Statute on the International Criminal Court provides that “the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means,” noting that these measures should be implemented in particular in the case of a victim of sexual violence. This statutory provision regarding in camera proceedings is implemented through specific sections of Rules 72, 87, and 88 of the Rules of Procedure and Evidence.

Among other functions, these rules define the appropriate use of in camera proceedings consistent with the statute. They also lay out the in camera procedure to consider relevance or admissibility of evidence related to consent in alleged crimes of sexual violence and the specific procedures, including notice requirements, for requesting in camera proceedings and other available measures.

Provisions guaranteeing the victim and witness protection and applying explicit language conditioning these protective measures on the accused’s right to a fair trial are common to all statutes. For example, the statutory language may specify that the measures cannot be prejudicial or that they must not be inconsistent with the rights of the accused.

Summary of approaches to victim and witness protection in different statutes and Rules of Procedure and Evidence:

In order to properly understand the protections that the ICT affords to witnesses, it is important to look at the approaches taken by the other existing international criminal tribunals.

ECCC approach: is a very broad directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. (See specifically Article 33, and Rules 12, 24, 25, 29, and 60).

ICTY and ICTR approach: has a directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. It also contains an explicit provision that victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 14, 19, and in particular Article 21 of the ICTR statute, Articles 15, 20, and in particular Article 22 of the ICTY statute and Rules 34, 53, 69, 70, 75, 77 and 79,ICTR and ICTY )

SCSL approach: the rights of accused to a fair and public hearing are subject to witness protection measures. It also provides for establishment of Victim and Witness Unit offering protective services. It specifies that consideration should be given to employment of prosecutors and investigators experienced in gender-related crimes. (See specifically Articles 15, 16, and 17 of the statute, and Rules 34, 69, 70, 75, and 79)

STL approach:  the rights of accused to fair and public hearing subject to witness protection measures. It provides for establishment of Victim and Witness Unit offering protective services and for participation of victims in proceedings. It provides for access to victim compensation. There is an explicit provision that victim participation and victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 12, 16, 17, 25, and 28 of the statute and Rules 50, 51, 52, 93, 116, 133, 137, 139, 159, and 166).

ICC approach: Comprehensive statutory provisions establishing Victim and Witness Unit and specifying victim and witness protection obligations of Prosecutor, pre-trial chamber, and trial chamber provide protective measures, particularly in cases of sexual violence. Also includes provisions on victim participation, reparations, a victim trust fund, and specific provisions for the protection of victims involved in requests for assistance. (See specifically Articles 43, 53, 54, 57, 64, 75, 79, 87, and in particular Article 68 of the statute and Rules 16, 17, 18, 19, 43, 72, 76, 81, 87, 88, and 112)

ICT: Though the 1973 Act does not contain any provision regarding witness and victim protection, the Rules of procedure has been amended in June 2011 where the term “Victim” has been defined (Sub Rule 26 in Rule 02) as a person who has suffered harm as a result of commission of the crimes under section 3(2) of the International Crimes (Tribunals) Act, 1973.” Besides, under the new Chapter VIA, a new Rule 58 A(1) has been inserted on Witness and Victim Protection which says “[t]he Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”. Sub Rule 02 inserted arrangements of accommodation of witnesses or victims and other necessary measures regarding camera trial and keeping confidentiality as necessary where violation of such undertaking shall be prosecuted under section 11(4) of the Act.

The success of these protective measures is yet to be proved especially with regard to the sexual violence witnesses. Besides holding the camera trial, the Tribunal should take other protective measures so that the witnesses come forward more to testify before the Tribunal.

Lastly, the proposed national law on victim and witness protection addresses many significant needs of members of this vulnerable group, and acknowledges the importance of support mechanisms that address physical, psychological, and economic wellbeing of victims and witnesses who will testify before the Court. However, the proposed legislation does not provide comprehensive measures compared to those provided by international and hybrid criminal tribunals. So if we want to ensure the safety and security for witnesses of any crime in future, we need to take certain guidelines from the international and hybrid tribunals which are consistent and feasible to the present socio-economic context of Bangladesh.