A second challenge in relation to the issuance of arrest warrants into active conflicts relates to the protection of victims, witnesses and their communities. This issue is anticipated in the Rome Statute (Article 68, and 57.3). Specifically, the Rome Statute states the following:
The Court shall take appropriate measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims and witnesses. (Article 68.1)
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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. (Article 68.5)
Related regulations charge the Prosecutor with responsibilities in relation to assessing risk to witnesses and others, and concern themselves with issues such as safety, well-being, psychological and psycho-social issues, and avoiding the possibility of re-traumatisation. Measures anticipated to mitigate risk include possible alternatives to questioning, data protection safeguards, and additional security measures in consultation with the VWU (which itself has no capacity for ensuring community security as such). It is important to
consider whether these assessments and measures are likely to be
commensurate with the task, given the scale and severity of the national and/or regional security issues involved (ICC 2009b: regulations 36, 45-47).
The militarised and potentially violent contexts in which protection will need to take place may also be tight-knit communities where visits and conversations with Court officials or outsiders, or periods of travel or absence to facilitate contact with Court officials, can be rare and conspicuous. Communities from which witnesses have travelled may be well aware of individuals’ movements and engagement with the Court, and even if their evidence is made
anonymous, the location of the crimes in question or the incident involved cannot easily remain secret. Through no fault of the Court, it may not be easy or in some cases possible to sustain the anonymity of witnesses.
The Statute has provision for the protection of victims, witnesses and their families (Articles 68, 87). These measures address (at least in theory) the relatively unlikely though still extremely serious possibilities of violence against targeted individuals. This attention to relatively small-scale risks that would be appropriate in less dangerous contexts is reflected in prosecutorial reporting, in
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relation to work in the DRC for example (Ocampo 2006c: 11-12). However, in these new contexts groups whose leadership have had ICC warrants issued for them may be quite indiscriminate in meting out vengeance, in retaliation for evidence offered or simply opinions expressed.9 Armed forces seeking to teach witnesses a lesson or deter others need not identify the individuals or their families for reprisals, as the Statute and regulations seem to imply. Atrocities inflicted on a witness’s community may be just as effective, particularly if
committed on a large scale. The engagement of victims and witnesses with the Court even at the investigations stage, or their testimony in relation to an
incident or specific geographic location, may place communities already
vulnerable to attack from rebel forces or states militaries or security services at significant risk. The protection of communities put at risk in such situations could have been addressed in the Court’s procedure documentations
concerning the long and short-term plans for the protection of those put at risk. However, neither here nor in the Statute does the scale of this issue appear to be anticipated (ICC 2002: Rule 17). Again, through no fault of the Court or its officers, the safety of witnesses or those in line for reprisals in these violent contexts will sometimes be well beyond its power to assure. This lack of Statutory anticipation of the circumstances of international crimes is an extension of the issue raised in 3.1.3d concerning the narrow identification of victims of crime as individuals, rather than communities.
The Prosecutor and other Court officials are aware of such challenges, as Schabas observes, but as previously discussed security concerns have been set aside as falling within the remit of other agencies (Ocampo 2003; Schabas 2011: 358-360; Rodman 2012). An example occurred in 2005, in relation to the
9 This is not a hypothetical example. The LRA has in the past heard broadcast of a
community in northern Uganda celebrating a setback it had suffered. In response it returned and committed an atrocity at that location upon the whole community, irrespective of which individuals were celebrating (author’s notes). If rebel groups commit collective punishment in this way, in an environment where there is no prospect for military protection (as has been the case throughout the LRA’s area of operations) then what means can the Court realistically provide to protect whole communities that are put at risk by the statements of witnesses, whose provenance can be identified on the ground through community networks, ICC activity, or by the evidence they submit? (Allen 2006b).
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Darfur warrants, when Professor Antonio Cassese indicated that the continuing insecurity of potential witnesses prevented effective and safe investigations.10 The Prosecutor stated ‘at the heart of Professor Cassese’s observations is the belief that the [Office of the Prosecutor] and the Chamber have a responsibility to enhance security for victims of crimes in Darfur’. The Prosecutor was
forthright in his position, stating that the intervention of the Court ‘should have the consequence of contributing to the protection of the civilian population in Darfur, by preventing further crimes’ but that it was not mandated to do so (ICC 2006a). Notwithstanding Rule 17 of the Court’s Rules of Procedure and
Evidence (ICC 2002), which (astonishingly unrealistically) charges the Victims and Witnesses Unit with providing ‘adequate protective and security measures’, his view was that the responsibility for security lay with others. In the case of the Darfur arrest warrants, this would have included the Government of Sudan (led by Omar Hassan Ahmad Al Bashir who was subsequently wanted by the ICC for Darfur crimes himself), the UNSC, African Union and other relevant international organisations, even though their respective willingness or
capability to assure protection was highly questionable. This Prosecutorial view is consistent with the position identified in the previous section, that security concerns fall outside the remit of the Court.
Subsequently, the former Prosecutor likened such threats to blackmail,
indicating that moral and practical considerations should be set aside in favour of the legal necessity to pursue arrest and prosecution (Ocampo 2007a: 9). The Statute makes provision for protection in theory for individual victims, witnesses and their families, but not in practice. As already established, the larger issue of the protection of victim communities is considered outside the Court’s remit even at a theoretical level.
Finally, in relation to both the issue of military enforcement of arrest warrants and protection of witnesses, and perhaps with Nuremberg in mind, the
situations apparently anticipated by the drafters of the Statute seem to assume
10 Professor Cassese was then Chair of the UN Commission of Enquiry and one of the
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that military force will in any case prevail and be aligned with the Court’s purposes. In a situation where the ‘wrong’ side wins a war or retains or gains control of territory, or is able to operate in a region where witness communities cannot be protected—and indeed in many of the situations into which the ICC is expected to issue warrants—the aspiration of the Court to effect arrest or
protect witnesses and their communities may not be realistic or realised. This does not imply that ICC warrants will not have effects in such circumstances. Indeed, the binding paradigm applied to international interventions conveyed warrants will apply indefinitely. After issuance of arrest warrants their
application, and the prioritisation of international criminal law (ICL), become a permanent fixture of an ongoing conflict indefinitely curbing other options to for security or peace.