(I) Abstract

Dealing with ICC’s Achilles heel: Witnesses interference

Witnesses testimonies have a fundamental role in internationals courts trials such as the
International Criminal Court. Witnesses of international crimes such as crimes against
humanity and war crimes are considered crucial in establishing evidence before this tribunals,
making these institutions vulnerable and dependent on them. As documentary evidence for use
at trial is not always widely available, individuals who have seen the events first hand are
essential to the criminal justice process.1 The prosecution and defense of international criminal
tribunals have had heavily relied on their testimonies, especially on eye-witnesses, expert, and
insider-witnesses.

Yet, owing to the very nature of the crimes concerned and the witnesses fragile geographic,
political, religious or ethnic circumstances in their country of origin has proven to pose
significant challenges before judicial institutions. Vested interest in several levels of society can
make their participation in this trials dangerous. Threats, intimidation, even murder has put in
risk the witnesses and victims safety. In occasions, bribery and witness influence had
undermined their credibility to the degree of causing the collapse of entire cases or leading to
full or partial acquittals. These severe concerns have lead to the unwillingness of witnesses to
testify.

In recent years the ICC’s Ruto, Dominic Ongwen, Ntganda, Jean-Pierre Bemba and the Laurent Gbagbo
and Blé Goude have shown that these issues remain problematic. On 19 October 2016, The ICC
has dealt with the first judgment involving witness tampering, upon conviction for offenses
against the administration of justice under Article 70 of the Rome Statute. This thesis will
explore the manner that the ICC has dealt with this issue, its strengths and shortcomings and
it will propose alternatives solutions, bearing in mind that “without victims/witnesses coming forward
to testify, the ability to bring justice and end a culture of impunity is thus seriously reduced.”2

1
Irving, Emma.(2014). Protecting Witnesses at the International Criminal Court from Refoulement, J Int
Criminal Justice: mqu069v1-mqu069, p. 1144.
2
Human Rights Watch, Juliane Kippenberg, Protecting Child Victims in Sexual Violence
Trials in the dr Congo: Suggestions for the Way Forward, 24 November 2009 [emphasis added].
 Chapter 1. Legal framework

1.1 What is Witness Interference?

Witness interference, in general terms, also called witness tampering in some legal systems, it is
the act of perverting or attempting to pervet, the course of justice by altering the content of a
witness’ potential testimony –destroying, tampering or interfering with the collection of
evidence-, obstructing or interfering with the attendance or testimony of a witness, retailiting against a
witness for giving testimony by means of threats, extortion, bribery and/or other forms or
coercion and/or bodily harm and/or death.

1.2 Risk resulting from Witness Interference.

1.2.1 Impact on the Witnesses integrity and safety.

As it has been noted, “Victims and witnesses are the lifeblood of trials involving serious
international crimes, such as genocide, crimes against humanity, and war crimes. Most
have survived or witnessed mass killings, rape, torture, inhumane imprisonment, forced
expulsion, and the destruction of their homes and villages. For many, testifying in an
international trial requires an act of great courage, especially when perpetrators still
walk the streets of their villages and towns. Fearing reprisals, witnesses even may hide
their participation in a trial from close friends, neighbors, and family members.” 3 For
many, it would not necessarily entail a negative experience4. Some witnesses indeed
want to tell their stories and feel a duty to do so, to ensure that the crimes committed
against their comunities, themselves or/and family members is recorded and
acknowledged. Nonetheless, even when that is the case, it cannot be reasonably
expected that they should be willing to risk their lives and safety or face rejection of their
families and communities in order to give their testimonies.

The protection of witnesses in international criminal cases is specially a complex matter

for several factors. While is true that witness interference is not a phenomenon unique
to the international tribunals and it can be also found in cases of common criminality

3 Human Rights Center, Bearing Witnesses at the International Criminal Court: An interview Survey of 109
Witnesses, June 2014, p.11.
4 A review of the extant empirical literature suggests there is little evidence that truth-telling mechanisms, including
war crimes tribunals in post-war settings, either “dramatically harm individuals…[or] ease their emotional and
psychological suffering. David Mendeloff, “Trauma and Vengeance: Assessing the Psychological and Emotional
Effects of Post-Conflict Justice,”Human Rights Quarterly 31 (2009): 593 , cited in ibid note 3.