The OTP’s Supposed “Independent Statutory Obligation” to Protect Witnesses

by Kevin Jon Heller

As I noted in my previous post, the OTP argued that it had an “independent statutory obligation” to protect witnesses that permitted it to ignore the Trial Chamber’s order to reveal the intermediary’s identity to the defense.  The Trial Chamber rejected that claim, and rightfully so.  There is no such obligation — or, perhaps more precisely, there is no such obligation that could possibly justify ignoring a Trial Chamber order regarding the protection of witnesses.  First, consider Article 54:

Article 54 — Duties and Powers of the Prosecutor with Respect to Investigations

1. The Prosecutor shall:

(b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children;

3. The Prosecutor may:

(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

Note that Article 54’s mandatory provision (“shall”) expressly subordinates “respecting” the interests of witnesses to ensuring the effective investigation and prosecution of crimes.  And note that the provision concerning ensuring the protection of persons is not mandatory (“may”).

Now contrast Article 54 with Article 68:

Article 68 — Protection of the Victims and Witnesses and Their Participation in the Proceedings

1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Article 68(1) not only imposes a mandatory obligation on the Court to protect (not “respect”) witnesses, it also expressly subordinates that obligation to the defendant’s right to a fair trial.  And Article 68(5), which permits the Prosecutor to withhold information whose release would endanger a witness, not only expressly subordinates that right to the defendant’s right to a fair trial, it also expressly limits the right to withhold information to “proceedings conducted prior to the commencement of trial.”

Even in the most generous reading, therefore, OTP’s “independent statutory obligation” must be exercised consistent with a defendant’s right to a fair trial.  And which organ of the Court is entrusted with the authority to protect that right?

Article 64 — Functions and Powers of the Trial Chamber

2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

And in case that is not clear enough, here is Rule 87 (“Protective Measures”) of the RPE:

1.        Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure.

One of the commenters to my previous post made a strong argument that the Trial Chamber erred in directing the OTP to divulge the identity of the intermediary to the defense.  She may well be right.  But it doesn’t matter, because the Trial Chamber has the final say about the protection of witnesses.  No “independent statutory obligation” exists that justifies the Prosecutor ignoring a binding order by the Trial Chamber.  Period.

http://opiniojuris.org/2010/07/09/the-otps-non-existent-independent-statutory-obligation-to-protect-witnesses/

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  1. […] of the OTP’s claim that it is bound by an “independent statutory obligation,” see another one of Kevin Jon Heller’s post at Opinio Juris, where he considers that there is no such […]