Chapter III PDF

CHAPTER – III
INTERNATIONAL PARAMETERS FOR THE

PROTECTION OF WITNESSES
3.1 DEVELOPMENT OF THE UNITED NATIONS AND

UNIVERSAL HUMAN RIGHTS
Till the end of World War II (WW II) the States, and not the individuals, were the only
subjects of the International Law. The end of WW II and the establishment of the United
Nations paved way not only for development of a new era of human rights protection
giving recognition to the rights of individuals paramount importance but also for
substantial progression in international criminal jurisprudence and concepts of fair trial,
especially in the arena of rights of the victims along with rights of accused. During WW
II, Germany and its allies were accused of committing war crimes on a massive scale
hitherto unheard of. The entire world was shocked with the kind of atrocities that were
committed against racial minorities including women and children numbered in millions.
The major Allied forces at the Moscow Conference on October 30, 1943 signed a
Declaration that prominent war criminals whose offence had no particular geographical
location would be punished. Accordingly the representatives of the governments of the
USA, The USSR, the UK and France met in London on June 26, 1945 to decide on a
common cause of action with respect to the trial of the major European war criminals.
Finally, on August 8, 1945 an agreement for the Prosecution and Punishment of the major
war criminals of the European ―Axis‖ was signed by the Allies. The Agreement was
accompanied by the Charter of International Military Tribunal. The Charter was small in
size consisting of only 30 articles. The Tribunal was to consist of one member from each
state and their alternate. Neither the prosecution nor the defence was entitled to challenge
the appointment of these judges. The Charter conferred powers on the Tribunal to try
mainly ―crime against peace, war crimes and crimes against humanity.‖82The Tribunal
specifically conferred the right of fair trial on every accused person and also elaborated
82
ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 19 (3rd edition, Oxford University Press, 2013).
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what constitutes fair trial.83 The right of fair trial included in the Charter enumerated
following rights of every defendant:
a) The indictment shall include full particulars specifying in detail the charges
against the defendants. A copy of the indictment and of all the documents
lodged with the indictment, translated into a language which he understands,
shall be furnished to the defendant at reasonable time before the trial.
b) During any preliminary examination or trial of a defendant he will have the
right to give any explanation relevant to the charges made against him.
c) A preliminary examination of a defendant and his trial shall be conducted in,
or translated into, a language which the defendant understands.
d) A defendant shall have the right to conduct his own defence before the
Tribunal or to have the assistance of a counsel.
e) A defendant shall have the right through himself or through his counsel to
present evidence at the trial in support of his defense, and to cross-examine
any witness called by the prosecution.
These principles mutatis mutandis were reiterated in various conventions adopted by the
United Nations at later stages and made them the fundamental principles to be adhered to
not only by the international tribunals but also by the states. They became jus cogens.84
The adoption of Universal Declaration of Human Rights85, without dissent, marked a new
beginning towards an era of human rights protection. The Declaration, at the time of its
adoption, was only a resolution of the General Assembly of the UN that was not intended
to create a binding obligation on the states; thus no enforcement mechanism was
introduced. It constituted ―common standard of achievement for all people and all
Nations.‖ Over a period of thirty years, however, most of the rights mentioned in it
became part of customary international law making them binding on all states.
3.1.1 Universal Declaration of Human Rights

The Declaration recognizes certain basic rights which every individual possesses by
reason of him being a human being. It recognizes the right to life, liberty and security of
83
Article 16 of Nuremberg Charter, 1945.
84
Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental,
overriding principles of international law, from which no derogation is ever permitted. See IAN BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW (5th edition, Oxford University Press, 1998).
85
December 10, 1948.
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person;86 that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment;87 everyone has the right to recognition everywhere as a person
before the law88 and many others. The Declaration recognizes specific rights of accused
person which are reiterated in International Covenant on Civil and Political Rights
(ICCPR) adopted by United Nations‘ General Assembly in 1966. The Covenant was
adopted to ensure that the rights that are mentioned in Universal Declaration of Human
Rights (UDHR) are made binding on all the parties through a document.89 Article 10 of
the UDHR mentions the right of every person to a fair and public hearing by an
independent and impartial tribunal; the determination of his rights and obligations and of
any criminal charge against him.
Article11 (1) of the UDHR states that everyone charged with a penal offence has the right
to be presumed innocent until proven guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.90 Clause (2) of this article talks
about non retrospectivity of law.
3.1.2 International Covenant on Civil and Political Rights

These general rights conferred on an accused UDHR are elaborated specifically under
ICCPR, which is a binding covenant on all the state parties. Article 9(2) of ICCPR casts a
duty on the state officials to inform the accused, the reasons for his arrest and the charges
against him at the time of his arrest. Clause (3) makes it mandatory for the officials to
bring the accused person before a judge or any other judicial officer within a reasonable
time and that the accused person is entitled to trial within a reasonable time period.
Article 10 of ICCPR states that all persons who are deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person.
Clause (2) of this article provides that the accused person shall be segregated, as far as
possible, from convicted persons and shall be subjected to separate treatment appropriate
to their status as unconvicted persons. Similarly, subclause (b) provides that accused
juveniles shall be separated from adults and are entitled for speedier adjudication. Clause
86
Article 3 of Universal Declaration of Human Rights, 1948.
87
88
89
See generally SARAH JOSEPH, JENNY SCHULTZ ET AL, THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY (Oxford University Press, 2000)
90
See also Article 14 (2) ICCPR.
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(3) of article 10 clearly mentions that prisoners are to be treated for their reformation and
their social rehabilitation.
Article 14 (3) specifically elaborated the rights of accused person as follows:

1) Everyone shall be entitled to a fair and public hearing by a competent and
independent, impartial tribunal established by law. However, in special
circumstances like public order or national security this right could be
limited.
2) Every accused shall be presumed innocent until proved guilty according to
law.
3) It confers the following minimum guarantees in full equality:
a) To be informed promptly and in detail in a language known to the
accused, the nature and causes of a charge against him.
b) To have adequate time and facilities for the preparation of his defence
and time to consult the counsel of his own choice.
c) To be tried without undue delay.
d) To be tried in presence and to defend himself in person or through
legal assistance of his own choice, or to have legal assistance assigned
to him, if he does not have sufficient means.
e) To examine or have examined the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him.
f) To have the free assistance of an interpreter if he cannot understand or
speak the language used in court.
g) Not to be compelled to testify against himself or to confess guilt.
Clause (4) of article 14 provides that in case of juvenile persons the procedure shall be
such as will take into account their age and the desirability of promoting their
rehabilitation. Clause (5) provides that every one convicted of a crime shall have the right
to his conviction and sentence being reviewed by a higher tribunal according to law.
Clause (7) states that no one shall be liable to be tried or punished again for an offence for
which he has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.
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Article 15 states that no one shall be held guilty of any criminal offence on account of any
act of omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time when the criminal offence was
committed. If subsequent to the commission of offence, a provision is made by law for
the imposition of the lighter penalty, the offender shall have such benefit thereby. Clause
(2) provides that ―nothing in this article shall prejudice the trial and punishment of any
person for any act or omission which at the time when it was committed was criminal
according to the general principles of law recognised by the community of nations.‖
The above mentioned rights are the guarantees accorded to every accused person against
the arbitrariness and the possible violation of basic human. Article 9(5) confers a specific
right on a victim of unlawful arrest or detention— the right to compensation. The right is
further elaborated in article 14 (6). This provision states that when a person has been
pardoned by a higher court while revising the order of conviction of that person by a
lower court on the ground that a new or newly discovered fact shows conclusively that
there has been a miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated unless it is proved that the non-disclosure
of the unknown fact in time is wholly or partly attributed to him.
3.1.3 Convention against Torture

The United Nations Convention against Torture91 is a specific instrument adopted by
General Assembly of the United Nations in order to protect the prisoners and prevent any
kind of torture against accused persons for extracting any kind of information or
otherwise. It is to be noted that the Convention is binding only on the state parties.
However, some of the provisions therein, overtime, have acquired the status of customary
international law.92 It defines torture as any act by which severe pain or suffering whether
physical or mental is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed or intimidating or
coercing him or a third person or for any reason based on discrimination of any kind,
91
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by General Assembly of United Nations on Dec. 10, 1984.
92
See generally MANFRED NOWAK, ELIZABETH MCARTHUR, HE UNITED NATIONS CONVENTION AGAINST
TORTURE: A COMMENTARY (Oxford Commentaries on International Law, Oxford University Press, 2008)
53
when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not
include pain or suffering arising only from inherent in or incidental to lawful sanctions.
This convention secures the rights of accused person and prisoners against the police
atrocities in order to protect the rights of the accused and prisoners mentioned under
UDHR and ICCPR.93 The convention provides for constitution of a committee known as
Committee against Torture. The Committee empowered to visit any prison in the territory
of the ratifying state to see if the provisions of the Convention are properly followed.
3.2 JURISPRUDENCE OF INTERNATIONAL CRIMINAL LAW

It can be rightly said that International Criminal Law is the outcome of the Nuremberg
Trials, which were conducted to punish the war criminals, persons, committing genocide /
crime against humanity and crime against peace. However, whether Nuremberg and
Tokyo Trials are truly of international character is a matter of debate. This is primarily
because only the Allied powers in the WW II took part in the establishment of a tribunal
and procedures of trials prosecuting of trials prosecuting only German and Japanese war
criminals.94 Nonetheless, the Nuremberg and Tokyo trials prepared the ground work for
other international criminal tribunals that were to be established in future.
3.2.1 International Criminal Tribunal for Former Yugoslavia and For Rwanda
The International Criminal Tribunals for former Yugoslavia and for Rwanda were
established by United Nations under chapter 7 of the United Nations Charter. The
International Criminal Tribunal for Former Yugoslavia (ICTY)95 was the first
international tribunal established by United Nations for prosecuting the war criminals for
the violations of International Humanitarian Law. The ICTY Statue was adopted by UN
Security Council Resolution No.808 (1993). International Criminal Tribunal for Rwanda
(ICTR)96 was established by United Nations, Security Council‘s Resolution 955 (1994). It
was established for prosecuting the leaders of Hutu, a racial community for responsible,
directly or vicariously, for killing thousands of Tutsis, a minority ethnic group. Both the
93
Article 5 of UDHR and Article 7 of ICCPR.
94
MICHEAL SCHARF, THE THEORY AND PRACTICE OF INTERNATIONAL CRIMINAL LAW 22 (Martinus Nijhoff
Publishers, 2008).
95
Id. at 24
96
Id.
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tribunals were conferred jurisdiction to try crimes categorised under four heads: (1)
Genocide (2) Crime against Humanity (3) War Crimes and (4) Crime of Aggression.97
Unlike Nuremberg and Tokyo tribunals, ICTY and ICTR had strong grounding for
prosecution of the heads of the states, heads of military and other state officials for crimes
recognised as international crimes by the world community.
The statutes of ICTY and ICTR are mostly similar in their content. They contain the
jurisdictional provisions, the crimes to be tried by tribunals, their definitions, constitution
of the tribunal, their powers and duties, rights of accused and the provisions for enactment
of rules of procedure and evidences to be admissible in the tribunals. So this study
concentrates on the witness protection measures of ICTY.
These tribunals are entitled to make their own rules of procedure and evidence before
them.98 These provision mention that the judges of international tribunals shall adopt the
rules of procedure and evidence for the conduct of pre-trial phase of the proceedings,
trials, and appeals, the admission of evidence, the protection of victims and witnesses and
other appropriate matters.
Accordingly the judges of ICTY and ICTR have framed the rules of procedure and
evidences in detail. The various rules have been enacted conferring the right of fair trial
on the accused persons. Equally so the rules for protection of victims and witnesses unit
under the authority of the Registrar that would consist of qualified staff to:
1. Recommend protective measures for victims and witnesses in accordance
with the provisions of the statute99and
2. Provide counselling and support for them in particular in cases of rape and
sexual assault.
The rules has also provided for employment of qualified women in the unit.
97
Id. at 26.
98
See Article 15 of ICTY Statute and Article 14 of ICTR Statute.
99
Article 22 of ICTY Statute and Article 21 of ICTR Statute.
55
As per Rule 34, ICTY has constituted a victim and witnesses unit. The tribunal has
realized the importance of testimony of witnesses in order to give justice to the victims of
massive crimes. They help to establish the facts of a crime with which the accused is
charged and thereby contribute in the process of establishing the guilt of the criminal.
Thus tribunal is committed to support all witnesses who willingly come before the
tribunal to testify. The special unit created for victims and witnesses undertakes the
responsibilities of supporting and protecting witnesses irrespective of the fact that they
were called by the prosecution, defense or the chambers.
This is an independent body that provides for logistical, psychological and protective
measures necessary for the victims and witnesses to make them comfortable during their
testimony. The Victim and Witnesses Section (VWS) trains the professional staff which
would be available on a 24 hours shift basis that helps witnesses with their problems
relating to psycho- social and practical needs before, during and after their testimony in
the tribunal.
The VWS has developed its own principles, policies and procedure to ensure that the
experience of testifying does not result in further harm or trauma to the witnesses. It
provides a safe and secure environment that fosters a positive, strengthening and
enriching experience for the witnesses testifying in the tribunal. The VWS is divided into
two separate entities firstly two teams consisting of support and logistical issues. They
focus more on social and psychological counselling and practical assistance to witnesses.
Further the protection unit co-ordinates the responsibility of the security requirements of
witnesses. The VWS operates with the highest degree of integrity, impartiality and
confidentiality ensuring the guarantee of securing the rights and entitlements of all the
witnesses who will have equitable access to the services of the section.
Witness Protection Measures in ICTY

The ICTY and ICTR categorize the witnesses as follows:
a) Insider witnesses – the accused before ICTY are mostly the ones who were
holding high-level positions in politics, military or police who are charged
with planning crimes and ordering others to commit them. The persons close
to these accused during the time of commission of crimes are called as
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―insider witnesses.‖ They are the ones who can provide the court with
evidence about their actions and state of mind at the very time the offence
was committed. The evidence gained from their testimony is crucial to
establish the degree of responsibility of the accused.
b) Perpetrator witnesses – these are the accused by the Tribunal who have
pleaded guilty to all or some of the crimes with which they were charged
and who have agreed to testify for the prosecution to bring out the truth.
These witnesses provide exclusive insight into the planning and commission
of crimes on a massive scale by political, police and military leaders.
c) Expert witnesses – are professionals providing their expert opinion on
topics such as military doctrine, political structures, former Yugoslav law,
demographics, financial transactions and forensic evidence. They help the
judges to determine the circumstances, in which crimes were committed, the
accused‘s authority over their subordinates, the identity and number of
victims found in mass graves, the number of victims killed in an area, among
others100.
According to general principles of fair trial (which are also applicable to tribunal)
witnesses must testify in an open court. However, in exceptional circumstances the
prosecutor or tribunal may ask the courts to take the testimony of witnesses in a closed
court by applying protective measures.101
As per Rule 75 of Rules and Procedure of Evidences of ICTY, a judge or a chamber may
on its own or at the request of either party or of the victim or witness concerned, or of the
VWS, direct apposite course and modes of security to assure victim/witnesses‘
confidentiality and safety. The accused person‘s right of fair trial, however, shall not be
affected due to these measures. A chamber may hold an in-camera proceeding to
determine whether its order.
Measures to prevent disclosure to the public or media of the identity or whereabouts of

victim or witness or of persons related to or associated with him by such means as :
100
http://www.icty.org/sid/158 (October 28, 2013).
101
Rule 75 & 79 of Rules and Procedure of Evidences of ICTY.
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a) Expunging names and identifying information from the chamber‘s public
records
b) Non-disclosure to the public of nay records identifying the victim.
c) Giving of testimony through image or voice altering devices or closed circuit
television.
d) Assignment of a pseudonym.
e) Closed sessions in accordance with rule 79
f) Appropriate means, measures to facilitate the testimony of vulnerable
victims and witnesses such as one way closed circuit television.
g) A chamber shall, whenever necessary control the manner of questioning to
avoid any harassment or intimidation.
As per Rule 79 a trial chamber may order that the press and the public be excluded from
all or part of the proceedings for reasons of –
1. Public order or morality
2. Safety, Security or non-disclosure of the identity of a victim or a witness as
provided in Rule 75 or
3. The protection of the interests of justice.
In doing so the trial chamber shall make public the reasons for its order.
These measures of protection seek to minimize the risk to witness‘s safety as a result of
testifying. Although all the parties present in the court are aware of the identity of
witnesses, they are bound by law and judge‘s order not to disclose their identity outside
the tribunal to any person. Any party doing so could be held in contempt of the tribunal
and be liable for a term of imprisonment of 7 years or to maximum penalty of one
hundred thousand Euros or both.
The protective measures that are extended to the witnesses by the VWS since 1996 to
2013 are shown below.102
102
Id, the figures are till February 2, 2013 http://www.icc-cpi.int/NR/rdonlyres/08767415-4F1D-46BA-
B408-5B447B3AFC8D/0/ProtectionseminarSUMMARY.pdf
58
Fig. 3.1 : The Protective Measures that are Extended to the Witnesses by the VWS
The right of protection extended to victims and witnesses is coupled with their
responsibility to depose the truth and only truth in front of the Tribunal. Any witness who
is does not tell the truth, knowingly and willingly, may be tried by the Trial Chamber. If
the person is found guilty for giving a false testimony, the witness may be liable to a
penalty which may not exceed 100.000 Euros, or seven years imprisonment or both.
3.2.2 International Criminal Court

Owing to its transnationality and enormity, witness protection is a cumbersome task
particularly in international criminal jurisdictions. The need for the growth of
comprehensive witness protection programme also arises due to several factors such as
ICC‘s international status, public hearings, its intense and profound dependence on live
evidence, conduction of enquiry throughout continuous fierce clashes, absence of suitable
witness protection enforcement system, inadequate security arrangements, lack of own
protection machinery / police, extreme dependency on state enforcement machinery /
peacekeeping forces etc.
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The protection of victims and witnesses is regulated in the Statutes and Rules and a rich
jurisprudence has developed.103 It is first and foremost liability of the Chambers of the
Tribunal to ensure and sanction protective means and methods, but the task is also shared
by the Prosecutor and the Chambers along with the Registrar and Registry at the ICC; the
Pre-Trial Chambers have been particularly active, including during the investigation.104
Rule 85 of the Rules of Procedures and Evidence provides for the definition of victim
which includes natural persons who have suffered harm as a result of the commission of
any crime within the jurisdiction of the court. It is also provided that victims may include
organisations or institutions that have sustained direct harm to any of their property which
is dedicated to their religion, education, art or science or charitable purpose and to their
historic monuments, hospitals and other places and objects for humanitarian purposes.
Fig. 3.2 : Hierarchy of Authorities in Witness Protection Programme
Source : Witnesses before the International Criminal Court: An International Bar Association International
Criminal Court Program report on the ICC‘s efforts and challenges to protect, support and ensure the rights
of witnesses, July 2013 at p. 28
103
Articles 54(1)(b) and (3)(f), 57(3)(c), 64(6)(e) and 68 of the ICC Statute
104
See Håkan Friman, Protection of Victims and Witnesses in ANDRÉ KLIP AND GÖRAN SLUITER (EDS.),
ANNOTATED LEADING CASES OF INTERNATIONAL CRIMINAL TRIBUNALS (Antwerp, 2010).
60
Special units for victim and witness issues, including protective measures and security
arrangements, are also established in the respective Registries. In order to avoid
‗secondary victimization‘, specialized Registry units also provide support measures that
are similar to social welfare services. The court proceedings in maximum cases are such,
as to create anxiety, fear and disinterest in the minds of victims/witnesses and stark lack
of proper protection facilities adds insult to injury, resulting in repudiation of cooperation
by vulnerable witnesses, the vulnerability of whom is dependent on the wide range of
reasons i.e. juvenility, physical/ mental fitness & strength, emotional stability, intensity
& category of crime, gender of victim in sexual assault cases, cultural inhibitions etc.
Thus witness protection means and modes are to be carefully devised and monitored.
Coercing a person to appear and give evidence is seldom a realistic option.
Hence, there is abundant use of protective measures. The protection may be motivated by
privacy or security concerns.105 The implementation of out of court security safeguards
are subject to many restrictions, especially relocation option, as it is impossible without
cooperation of the concerned government agencies. In order to secure minimum
reliability on state agencies, it is devised to develop a less expensive alternative protection
& investigation modus operandi, where not only highly susceptible victims/witnesses
(including their close relatives/family members) but also prospective potential witnesses ,
are subjected & exposed to least possible contact and communication, whereby, during
criminal trial, various defensive as well as secrete methods i.e. voice and image
distortion, pseudonyms, declaration/testimony by video links, in camera proceedings,
video screening, prohibition of media and public in court, photo proscription,
postponement of confession/testimony etc. are made accessible for execution.
The Victim and Witnesses unit, the section responsible for protective measures, is to
exercise its functions in accordance with article 43 paragraph 6 of the ICC statute. It
should perform the following functions also in consultation with the Chamber, the
Prosecutor and the Defense as appropriate. With respect to all witnesses, victims who
appear before the court and others who are at risk on account of testimony given by such
witnesses -
105
ICC has concluded special (confidential) agreements with States for the purpose of witness protection.
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a. Providing them with adequate protective and security measures and
formulating short term or long term plans for their protection.
b. Recommending to the organs of the court the adoption of protection
measures and also advising relevant states of such measures.
c. Assisting them in obtaining medical, psychological and appropriate
assistance.
d. Making available to the court and parties training in issues of trauma, sexual
violence, security and confidentiality.
e. Providing counsel for the amplification and expansion vis-à-vis code of
conduct of various investigating and defence agencies involved in the
programme including NGOs and inter governmental organizations, with
advice of prosecutor, viewing the grave nature of protection procedures and
their secrecy requirements.
f. Cooperating with states where necessary in providing any measures as
stipulated in this rule.
With respect to witnesses, exclusively the following functions are to be performed:

a. Advising them where to obtain legal advice for the purpose of protecting
their rights in relation to their testimony.
b. Assisting them when they are called to testify before the court.
c. Taking gender sensitive measures to facilitate the testimony of victims of
sexual violence at all the stages of the proceedings.
In performing its functions, the unit shall give due regard to the particular needs of
children, elderly persons or persons with disabilities. In order to procure the apt
involvement and respective safety of juveniles and children pre trial, during trial and post
trial as well as during investigation, due assistance and guidance by various agencies may
be provided via agreements of legal guardians/ parents/child support systems. The
relevance and applicability of protection methods, regarding the victims and witnesses
(whose life/property are at risk by reason of their involvement in the trial) and innocent
third parties including justice collaborators/ court staff, was widely broadened by the ICC
Appeals Chamber via wide ranging all embracing analysis of ―Non disclosure
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Provisions‖.106 It was ensured that protection programme is professed as ―neutral‖ and
thus, is open to all the witnesses irrespective of their status as prosecution or defence.
Therefore, the units ‗ad hoc‘ with the Registry were entrusted with the responsibility of
administering the various viable protection measures including relocation and
repositioning alternative.
In case of conflict between the Prosecutor and the Registry unit, the ICC Appeals
Chamber provided that the relevant Chamber will be the ultimate arbiter and
consequently rejected the Prosecutor‘s endeavour to preventively reposition &
rehabilitate witnesses unilaterally. Without any doubt, these practices obviously defeat the
universal principles of ―Fair Trial‖ and to procure as well as preserve, faith in fair trial in
criminal justice, a very diligent balancing of interests of both, the accused & complainant,
is compulsory. Paradoxically, the universal principal of public trial is contrary to the
principle of public identification.
Even worse are measures withholding the identity from the accused, which must be
construed so that respect for rights (i.e. having apposite and sufficient time plus
conveniences for preparation of defence counsel in respect of examining/cross examining
witnesses ) could be maintained. The ―bringing into play‖ of anonymous witnesses has
raised eyebrows unanimously. A particularly controversial measure is the use of
anonymous witnesses. The testimony by anonymous witnesses was initially permitted by
ICTY. But it invited criticism universally especially from the proponents of adversarial
measures, resulting in the end of the practice.107 The current practice at ICC requires that
witness identity may be concealed from the defence counsel but the anonymity of witness
at trial remains disputed, as no unanimous interpretation has been arrived at.
Nevertheless, the better judgment prefers the concealment of witness identity only
previous to the initiation of the criminal trial. For instance, identities can be concealed or
suspended during the verification process, despite the fact that it can be done only in
extraordinary circumstances.108 Quite another matter is to what extent participating
victims, who are not witnesses but at least sometimes could be considered as ‗accusers‘,
106
Katanga ICC A. Ch. 13.5.2008 (Judge Pikis dissenting).
107
See Monroe Leigh, The Yugoslav Tribunal: Anonymity is Inconsistent with Due Process, 90 AM. J. INT‘L
L. 235 (1996).
108
Article 68(5) of the ICC Statute
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may have their identities protected from the prosecution and defence. Such anonymity has
not been ruled out.
The International Bar Association of International Criminal Court’s Report on

Witnesses in ICC109
The International Bar Association (IBA), established in 1947, is the world‘s leading
organisation of international legal practitioners, bar associations and law societies.110 The
IBA is known for influencing shaping the reforms in international law and contributing in
the development of legal profession throughout the world. The IBA is currently
implementing a MacArthur Foundation-funded programme to monitor the work and
proceedings of the International Criminal Court (the Court or ICC) and to conduct
outreach activities.111
In the beginning of March 2013, the International Criminal Court (ICC or the Court)
faced with a major problem when the Prosecutor of ICC withdrew the charges of
Genocide against Mr. Francis Kirimi Muthaura, former head of Kenyan army, on the
ground of loss of material evidences and serious problems with eyewitnesses. It was
alleged that due to these problems it was impossible to prove the guilt of Mr. Muthaura
beyond reasonable doubt. Recalling the issue of false testimony in the trial of Mr.
Thomas Lubanga Dyilo and Mathieu Ngudjolo Chui the first trials from the Democratic
Republic of Congo (DRC); the International Bar Association (IBA) of ICC conducted
wide research on success and failure of Witness Protection Program (WPP) of ICC. The
IBA conducted various meetings with the judicial officers and other stakeholders to
address the issues in this area and came up with this report on July 2013.
The IBA after an extensive research have figured out certain problems in WPP at ICC and
have suggested possible solutions for overcoming these problems. These problems are
summarized as follows:
1) Mandating attendance of witnesses in person – the ICC procedure relies
heavily on the personal attendance of the witness in the court for testifying
109
Witnesses before the International Criminal Court: An International Bar Association International
Criminal Court Program report on the ICC‘s efforts and challenges to protect, support and ensure the rights
of witnesses, July 2013
110
Id pg. 7
111
Id
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against or in favour of the accused whereby the Judge can decide on the
credibility of the testimony of the witness directly. IBA has observed that
such compulsory attendance of witnesses at Hague may result in number of
challenges for witness protection like, providing protection measures,
addressing immigration issues, logistical challenges and risk of rising claims
for asylums. Another major problem in this regard is the ICC lacks subpoena
powers and thus may have to rely on State for attendance of witnesses. The
Court also has been unwilling to accept any evidence from other sources
like, reports of NGO and media reports. To reduce these problems, IBA
suggests that the Court should be flexible in adopting latest techniques for
recording the testimony of witnesses like video conferencing and voice and
cyber communications.112
2) Nevertheless, the VWU facing many challenges in implementation of the
WPP. The problem of shortage of qualified and trained staff and lack of
leadership at the management level has made it difficult to deal with WPP
effectively. Further, there is no increase in the allocation of budget in
proportion to the rising number of cases admitted to the program. The IBA
has suggested that the operational structure of the VWU must to be
reinforced.113
3) It was pointed out in the IBA report that there was no protection offered to
the defence witness under VWU initially. When the Joint Protocol on the
Mandate, Standards and Procedure for Protection in March 2011 for
extension of protection to such witnesses was extended to cover defence
witnesses, the defence is not assisted in any procedure relating to the
effective protection of its witnesses. For example, it is the defence counsel
who has to carry out the psych-social risk assessment of witnesses and
submit to the VWU which is not expected as such risk assessment must be
done by trained professionals and not by counsel. Currently at ICC Registry
office there are two offices dealing with counsel matters; one is Office of
Public Counsel for Defence (OPCD) that is duty bound to protect the rights
of defence and to provide all required assistance to them including research
and legal aid; and Counsel for Support (CSS) that helps with admission and
112
Id pg. 18
113
Id pg. 28
65
training to the Counsel. IBA therefore suggested that the Registry must also
hold meetings with the defence in order to know their problems and provide
assistance wherever necessary. It is also emphasised that the separate
defence unit under OPCD could be formed to assist in the protection of the
defence witness. IBA suggests that in absence of protection to defence
witnesses the Court‘s efficiency will be seriously questioned.114
IBA further observed that the special measures that are adopted during the
trial for protection of identity of witnesses shall not hinder the right of
defence counsel to cross examine the witnesses. The right of the accused to
have an open trial must be upheld by the court.
4) The next issue at hands was the cooperation of state parties to the requests
made by Registry or OTP and the Defence for the conduct of fair trial. Many
a times it was found that the requests are not clear or that they are not made
on time or some are made without having any regard to national law.
Moreover, the defence has to apply for such cooperation either through
Registry or on its own. Most of the State parties were found not cooperating
enough to these requests. The IBA has suggested formulating a proper
procedure for sending requests and also adequate provision for the assistance
to defence in the same matter. It is observed by IBA that only few member
states have cooperated in the relocation of witnesses. The ICC in 2009 has
established ‗Special Fund for Relocation (Special Fund)‘ to facilitate the
State parties who do not have sufficient finances for relocation of witnesses
which the State parties has not availed. IBA proposes the Assembly of State
Parties (ASP) to encourage the States to effectively cooperate ICC in
achieving the intended object.
5) Because the ICC does not have its own staff it has to rely on cooperation of
States resulting in certain major problems. One of such problems is the use
of intermediaries in conducting investigations. In any new situation in any
State, it is not possible for the ICC prosecutor and its limited staff to conduct
investigation without the help of the local people who are normally called as
intermediaries. These intermediaries help the staff to find witnesses and
other relevant material to prove the case. In Lubanga case however it was
114
Id pg. 30
66
noticed that these intermediaries were responsible for identifying witnesses
who were provoked to give the false evidence. Thus in order to regulate the
use of these intermediaries ASP came up with Draft Guidelines Governing
the Relationship between Court and Intermediaries in August 2011.
However, it does not have clarity as to the role of intermediaries and so its
effectiveness is debatable.
The IBA has urged to ICC in matters relating to standardised the policy
relating to intermediaries, timely action against those giving false evidence
in Court and formulate universal procedure rather than adopting case to case
procedures.
6) Another problem faced by ICC is the application for seeking asylum by the
witnesses. IBA points out that the witnesses seeking asylum could be a sign
of lack of effective security assessment by the officers of the Court. IBA in
this behalf has suggested that ICC, state parties and the Host state must
formulate a joint policy on the relocation of the witnesses or the acquitted
persons seeking asylum.
7) Lastly the IBA has suggested an amendment to Article 93(1) (e) of the Rome
Statute conferring subpoena powers on the Court and casting a duty on the
State parties to transfer the witnesses to the Court whenever asked by the
Court. The word ‗voluntary‘ must be omitted and the word ‗facilitating‘
must be replaced with ‗ensuring‘.115 The IBA proposes that where such
transfer is not possible for the security reasons, the Registry must
experiment the use of video conferencing etc. to extract the testimony. The
IBA also has emphasised the use of other evidences like forensic evidence,
government record, medical reports video footage etc.116
The IBA report on witness protection in ICC is based on extensive research and
consultation with the relevant stakeholders. It has given a much needed insight into the
existing problems of the ICC organs. It not only has pointed out the lacunae but has also
provided with feasible solutions to them. In order to increase the efficiency, the ASP must
accept these recommendations as soon as possible and bring the effective changes in its
procedure.
115
Id pg. 58
116
Id
67
3.3 WITNESS PROTECTION PROGRAMMES IN OTHER
JURISDICTIONS
3.3.1 Witness Protection Programme in South Africa
Before adopting the 1996 National Crime Prevention Strategy, the South African witness
protection was regulated by section 185A of the Criminal Procedure Act of 1977. More
than securing the safety and security of the witnesses, the provision was used as a scheme
of extracting evidence from the witnesses during the Apartheid rule.117 But with the end
of apartheid regime, the adoption of the 1996 strategy proved to be a boon to the
threatened witnesses. The strategy was a key legislation in protection of witnesses. It not
only brought the witnesses to court without fear but also brought them into the
mainstream of the criminal justice administration.
The National Witness Protection Programme is in existence since the creation of the
Directorate of Witness Protection in 1995 by the Ministry of Justice i.e. way before the
current legislation on Witness Protection enforced in 2000.118
The main features of the Witness Protection Act, 2000, could be summarised as follows:
1. Under the Authority of the Minister of Justice and Constitutional
Development a national Office for Witness Protection is created. At the
national level the head of the Office is National Director having various
branches in the nine provinces of South Africa. The Office, as an interim
measure, was reorganised and named as the Witness Protection Unit in 2001
and was considered to be a part of the National Prosecuting Authority till the
legislative amendments in that behalf took place.
2. Being the Head of the Office, the Director has certain powers and he is the
sole authority to decide on the admission of a person to the witness
protection program. The Head of the branch office, the National Prosecuting
Authority and the other related law enforcement officers give a report to the
Head before he decides an application for admission. If the application, for
117
United Nations Office on Drugs and Crime‘s report on Good Practices on Witness Protection in
Criminal Proceedings involving Organized Crime, available on http://www.unodc.org/documents/
southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_the_protection_of_witnesses_
in_criminal_proceedings_involving_organized_crime.pdf published in 2008
118
Witness Protection Act, 2000, http://www.justice.gov.za/legislation/acts/1998-112.pdf
68
any reason, is rejected by the Director, or where a witness is to be
discharged from the program by serving a written notice to him explaining
the reasons of discharge; the aggrieved person can appeal to the Minister of
Justice and the Constitutional Development.
3. The types of crimes for which a person may claim the protection are
enumerated in the Act. The definition, however is inclusive and the Director,
if feels right, can grant a protection to a witness in crimes other than those
enumerated in the Act if the situation warrants so.
4. The Act, in order to uphold its object, also emphasises to quash any pending
civil cases against the witness by hearing an ex parte application in order to
avoid the disclosure of his identity or his location. The proceedings can be
initiated against such person only in the Office for Witness Protection.
5. The Act has carved out the offences and severe punishments for any act of
disclosure of identity or the whereabouts of a witness admitted in the
program. This ensures the safety of the witnesses and the officers involved
in the program. It is the Head of the Office who has the sole authority to
decide if any information regarding the witness is to be disclosed that too
only after a proper hearing and without contravening any other law in
existence.
6. It is the duty of the Minister of Justice to make legal arrangements for the
witnesses who needs to be protected outside the territory of South Africa.
Such legal arrangements necessitate entering into agreement with other
countries, international institutions, organisations etc.
The Witness Protection Program is entirely voluntary. But if a witness accepts the
admission to the program, he has to enter into a Memorandum of Understanding (MOU)
that enumerates the rights and responsibilities of both the parties. An allowance is
awarded to the witnesses depending on the kind of arrangement he has made in order to
get admitted in the program; e.g. if he has left his employment, the accommodation he has
catered and so on. This is to ensure that he does not suffer at the hands of State authorities
69
and is compensated fairly for incurring the threat for his participation in the justice
system. A witness can opt out of the program before being discharged but has to sign a
waiver mentioning that his safety is no longer the concern of the program.
The Office normally tries to settle the witness comfortably in an environment to which
they are adapted. In certain circumstances, they might be allowed to reside in their own
houses providing them security. In extreme cases witnesses might be coerced to shift to
other countries to ensure their protection.119
The credibility and effectiveness of the Witness Protection programme is seriously

questioned in the recent past on the ground of the murder of two witnesses with attempted
bombing in a restaurant in Cape Town. Another witness to a murder in Durban Kuala was
living in a house in Newcastle at the time he was shot dead while in the custody of the
witness programme.120
After analysing these two incidents, it was pointed out that because of increases in the
number of witnesses being admitted in the program it has become difficult to provide full
time body guards to all of them as it costing too heavy on the state. Previously, the ratio
of each police officer to witnesses responsible was 26 which were brought down to 186
witnesses for each police officer. This culminates into another major problem of shortage
of staff. This has resulted in police officers being overburdened and thus they find it
difficult in following instructions of the programme or implementing the same.121
The program also suffers from serious allegations of the incidences of insulting and
intimidation of witnesses at the hands of the police officers in-charge of protection
program. Enjoying the immense power to regulate safety, allowances and welfare of the
witnesses under the program, the authorities have been observed to be dominating the
witnesses. The vulnerability of witnesses is evident as they by getting admitted in the
program put themselves at the mercy of the in-charge officers. Thus the problem of
119
See WESTERN CAPE GOVERNMENT, Getting Witness Protection (March 12, 2014),
http://www.westerncape.gov.za/service/getting-witness-protection.
120
Cheryl Goodenough, South Africa’s Witness Protection Programme (March 12, 2014),
www.cherylgoodenough.com/docs/sawitnessprotection.pdf.
121
See ISS AFRICA, The Justice Sector Afterthought: Witness Protection in Africa (March 8, 2014),
http://www.issafrica.org/publications/books/the-justice-sector-afterthought-witness-protection-in-africa.
70
balancing of power in the relationship and proscription of the abuse has become a serious
concern of the State.122
Lastly the major problem of the duration of protection must be answered by the
legislation. In most of the cases, the witnesses are left at their own peril after the
conclusion of the trial. Reasonably assuming that the threat doesn‘t cease to exist on the
completion of the trial and hence the government needs to address the question of safety
after the conclusion of the trial for a reasonable period of time, depending on the facts and
circumstance of the case.
3.3.2 Witness Protection in Albania

In Albania, the legislation for witness protection is known as The Assembly Law on the
Justice Collaborators and Witness Protection of 2004. The Act provides for important
definitions as witness of justice, a collaborator of justice, close persons, related persons,
protected persons, a dangerous situation, a senior crime etc.
Witness of Justice is considered as the person towards whom the special measures of
protection have been applied and who in capacity of witness or a damaged person,
notifies or testifies for facts and circumstances which constitutes evidence in the criminal
proceedings of the offences provided in the letter ―e‖ i.e. grave offences, by reason of
which his life is in severe, bona fide peril.123
The Directorate for Witness Protection and Justice Collaborators, a body established and
responsible under the Act, implements special measures or temporary measures for
witness protection, while Commission for Evaluation of Special Measures of Witness
Protection and Justice Collaborators estimates and reviews the various modes of
protection to be sanctioned as per the state of affairs of the case Republic of Albania
encompasses in this respect, a unique state structure, as a part of state police, with
national presence, directly controlled by General Director of State Police. Minister of
Justice and General Director of State Police jointly chalk out and finalize the rules for the
122
Id
123
Albania: Law No. 9205 of 2004 on Justice Collaborators and Witness Protection [Albania], 15 March
2004, (March 8, 2014), http://www.refworld.org/docid/4c20dd572.html .
71
management and allocation of funds/assets for overseeing the witness protection
operations.
The Commission for Evaluation of Special Measures consists of one member from these
ministries. The prosecutor assigned for the investigation of a criminal case have the right
to propose the implementation of special protection measures for the approval from
Commission on the evaluation of the Special Protection Measures. An appeal may also be
made to the Directorate by the prosecutor for justice collaborators, inclusive of
suggestions for provisions of apt transitory and fitting safeguards/security measures.
The necessary ingredients of the ―Proposal for the appliance of Special Protection
Measures‖, on the instance of prosecutor, may be summarized as under:
1. Individual statistics of the person/persons to be admitted into the protection
programme.
2. Relevant records, facts and figures on the progression of the case and
assessment of the accumulated evidences/ proofs.
3. The significance of the information and evidences possessed and to be
produced by witnesses and the respective reasons for the helplessness of the
witnesses to depose fearlessly.
4. Relevant data of the financial standing of the protected witness.
5. Other miscellaneous information as deemed fit/substantial by the prosecutor.
In the shortest time possible and in any case not more than 15 days from the approval of
the special protection measures, Directorate for the Protection of Witness prepares the
agreement for signing it by witnesses. Before the agreement is signed prosecutor must be
informed and he should give his approval. The respective ―Rights & Responsibilities‖
mentioned in agreement will commence as per procedures and modes enumerated in the
agreement. If the witness is a minor, then parents/legal guardians are permitted to sign the
124
agreement on his behalf. In case of adult who are emotionally disturbed, agreement
can be signed by the custodian appointed by law. In protection agreements, following
issues are obligatory:
124
SECI CENTER, Overview on Witness Protection Measures in Albania (March 8, 2014),
http://www.secicenter.org/doc/witness_protection_legislation_in_Albania_(3).doc.
72
1. Rights and obligation of the protected person.
2. Rights, responsibilities and liabilities of Directorate for the security of
witness.
3. The respective reasons of amendment/modification/exclusion in protection
provision, in case there is any.
4. Expected & approximate duration and extent for the execution of the
protection measures.
5. The various terms & conditions of the agreement which should be honoured
by the witnesses, may be summarized as follows:
a. To furnish complete details including information about the criminal
offence which he knows/possesses respectively.
b. To consent with and honour the obligations included in agreement.
c. To refrain from any activity or inactivity which may pose peril to the
protection plans and procedures.
d. To inform Directorate of Witness Protection about events of life,
contacts with third parties that can endanger special measures of
protection
e. Information about property owned by him or his relatives.
The following special measures can be provided for witnesses, Justice Collaborators, their
relatives and closely related person:
a. Change of identity
b. Change of residence
c. Temporary protection of the identity, information and documents of the
protected person.
d. Declarations of the witness under another identity and their administration
with special means for voice deformation non-appearance and other forms
defined by law.
e. Special physical and technical measures of protection.
f. Protection and special treatment in cases when a justice collaborator has
been placed in prison as a pre-trial.
g. Social rehabilitation
h. Maintenance, change of work place and temporary employment
i. Financial aid for the time period between two employments.
73
j. Professional requalification
k. Giving the advice and specialized legal assistance
l. Other ways as defined by law.
These above mentioned exceptional measures for protection are devised for long term,
sometimes for indefinite period and are provided to the protected in all the stages of trial
i.e. pre trial, during the trial and also post trial, if situation stresses so. However, these
measures are not to be executed so efficiently so as upgrade the financial status of the
subjects of the programme.
The intensity of risk, the appositeness of protected person and his performance of
responsibilities envisaged in agreement, generally decides upon the duration of protection
methods to be applied.
In the below stated circumstances, the ‗special measures‘ may be ended:

1. As soon as the duration mentioned in protection agreement comes to an end.
2. In case of death of the protected person.
3. With the written request by protected person.
4. If the execution of protection measures envisaged in agreement is not up to
mark.
The protection to witnesses may be terminated or modified in the under mentioned

circumstances:
1. If it is found, with sufficient reasons, that risk has ended/subsided.
2. If the witness, during investigation and trial of criminal offence gives false
testimony or information.
3. If it is found that witness is involved in criminal activity.
4. If the protected person disrespects/breaches the obligations included in
agreement or is found guilty of furnishing false information or refusal to
provide evidence.
5. If persons under the protection programme turns down professional
prospects offered by Directorate of Witness Protection.
6. If another state where witness is shifted requires termination of special
measures.
74
Further, extra-ordinary special measures might be provided by the State Police depending
upon level of risk involved by the state police, Prison Institutions within 24 hours from
the communication of the same to the Directorate of Witness Protection.
In spite of being a developing country, lacking in extraordinary financial resources,

Albania‘s maturity towards the importance of the witness protection is praiseworthy. The
Witness Protection legislation as discussed above aims at regularising the respective
means, methods and modus operandi in respect of witness protection. It also controls the
functioning and cooperation among the diverse government agencies involved in various
stages of witness protection right from application, evaluation, sanction and execution of
selected mode of protection depending on the circumstances of the case. It has adopted
many challenging measures that a developing country can afford to provide its citizens.
The program is adequately sound and can be effective if implemented in its strictest
possible sense.
3.3.3 Witness Protection in Canada

Canada recently amended its witness protection legislation which was established to
operate and administer the protection of certain persons involved in certain investigations,
proceedings and trials to make it more robust and comprehensive.125 The purpose of this
Act is to promote law enforcement by facilitating the protection of persons who are
involved directly or indirectly in providing assistance in law enforcement matters.126 This
legislation consists of 21 sections is divided into two parts.
It defines a ―Witness‖ as a person who has given or has agreed to give information or
evidence or participates or who has agreed to participate in a matter, relating to an inquiry
or the investigation or prosecution of an offence and who may require protection because
of risk to the security of the person arising in relation to the inquiry, investigation or
prosecution or a person who, because of their relationship to or association with a person
referred to, may also require protection for the reasons referred to.
125
Witness Protection Programme Act, 1996 as amended in April 23, 2012, (March 8, 2014), http://laws-
lois.justice.gc.ca/eng/acts/W-11.2/
126
Id. section 3.
75
Further, the Act provides that witness protection programme is to be administered by the
Commissioner,127 whereby he is entrusted with adequate powers to ensure the rationale of
admission of witness into protection programmes as well as the category /level of
protection to be assigned, upon compulsory recommendation of a law enforcement
authority or an international criminal tribunal. The commissioner can also provide suo
moto protection if witness himself provides the information essential for admittance into
the programme. These factors shall be considered for determining whether a witness
should be admitted to the programme:128
1. The nature of the risk to the security of the witness.
2. The danger to the community if witness is admitted to the programme.
3. The nature of inquiry, investigation or prosecution involving witness and the
importance of witness in the matter.
4. The value of information or evidence given or agreed to be given or of the
participation by the witness.
5. The probability of the ‗adjustment by witness‘ in the protection programme,
keeping into view, his family and his personal traits such as his rationale,
ethics, maturity, sensibility, better sense of righteousness etc.
6. The cost/funds/assets involved in the administration of witness protection
programme.
7. Other measures of witness protection which can be applied without any
formal admittance in the programme.
8. Such other factors as commissioner deems fit.
The witness has to enter into an agreement with the Commissioner which sets out the
obligations on behalf of both the parties. The Commissioner has power to admit any
person (without signing agreement) into the protection programme (for maximum 90
days), if there is any emergency.129 A witness protection agreement is deemed to include
following obligations130:
1. Commissioner must take reasonable steps necessary to provide protection
referred in the agreement to the protectee.
2. On the other hand the protectee shall,
127
Id. section 4
128
Id. section 7.
129
Id. see section 6(2)
130
Id. section 8
76
a. Give information and evidence or to participate as required in relation to
inquiry, investigation or prosecution to which the protection provided in the
agreement relates.
b. Meet other financial obligations which are not provided in the agreement
c. Meet all legal obligations incurred by the protectee, including any other
obligations regarding custody and maintenance of the children.
d. Refrain from activities that constitute offence against Act of Parliament or
which compromises the security of the protectee or programme.
e. To accept and give effect to the reasonable directions given by the
commissioner in relation to the protection provided to the protectee.
The Commissioner has been entrusted with adequate powers to end the protection
provided to the witness if he has sufficient reason to believe that the witness has:131
1. Made substantial falsification and distortion of the facts or has not revealed
relevant facts
2. Done intentional and substantial breach of obligations/agreement under the
protection programme.
However, the witness is given adequate notification and opportunity to shed light on his
conduct, by the Commissioner, before cessation of his protection.
Once the decision is taken by the commissioner he shall report to the Law agency or
International Criminal Court, which has recommended the witness, in writing the reasons
for termination so that it understands the basis for the decision taken.132
The Commissioner is also required to communicate in writing, the reasons to the person
i.e. witness for termination, so that he comes to know the basis of the decision. The Act
further provides that no person shall knowingly disclose, directly or indirectly the
information about the location or change of identity of a protectee or former protectee.
But this condition will not apply if such disclosure of information does not endanger the
131
Id. Section 9
132
Id. see section 10
77
security or safety.133 The Commissioner can disclose such information with the consent of
the protectee or if it is essential in the public interest.134 For instance:
1. For prevention of the commission of serious offence
2. National Security or National defense or
3. In criminal proceedings were disclosure is essential to prove innocence of a
person.
If witness is not in favour of disclosure of information, he can make representation

against such decision, to the Commissioner, provided that it does not obstruct the
proceedings of the crime, contrary to which such appeal may not be granted. The issues
mentioned below should be taken into account while disclosing information of protected
witness:135
1. Raison d'être136 for the revelation.
2. Perilous consequences if any, of such disclosure affecting protected witness
and the reliability of the protection programme.
3. Probability of exploitation of such exposure.
4. Other options/substitutes for such measures.
5. Other successful and reliable methods to avert further exposure &
disclosure.
The Commissioner may enter into an agreement with Law enforcement agency, or with
Attorney General of the province and provincial authority in order to obtain documents
and information required for the protection of the protectee.137
The Minister may enter into a reciprocal agreement with a foreign jurisdiction to enable
witness involved in the activities of law enforcement agency to be admitted in the
programme. But no person can be admitted in Canada pursuant to such agreement without
the consent of the Minister of Citizenship and Immigration.138 The Minister may enter
into an agreement with International Criminal Court or Tribunal, to enable witness
involved in the activities to be admitted to the programme.
133
Id.see section 11.
134
Id. see section 11(3)
135
Id. section 12
136
Reasons
137
Id. see section 14
138
Id. section 14(2).
78
It is an offence if person deliberately discloses the information about place or identity of
the protectee as per section 11(1) which is punishable with fine not exceeding $50000 or
for imprisonment up to 5 years, or both.139
The legislation is a comprehensive document laying down the rights, responsibilities of

the officers of witness protection program and of witnesses. It details the procedure of
admission, protection measures and the consequences of breach of obligations under the
MOU. The Legislation is a good piece of work that can be adopted with changes suitable
to the adopting country.
3.3.4 Witness Protection Program in United States of America (USA)

The Witness Security Program (WITSEC) in the USA is run by United States Department
of Justice and is executed by United States Marshall Service (U.S. Marshall Service). The
U.S. Marshals Service looks after the safety, health and security of prosecution witnesses
and their immediate family members if there is a danger to their life and limb. The
Witness Security Program was sanctioned under the Organized Crime Control Act of
1970. It is now included in the Comprehensive Crime Control Act of 1984.
The U.S. Marshals Service is the oldest and most resourceful federal law enforcement
agency and has worked in most critical conditions. The Marshals Service has achieved a
very important position in the administration of justice system. The Marshalls are
appointed by President. They lead the activities of 94 districts being in-charge of one for
each federal judicial district. Roughly 3,829 deputy U.S. marshals and criminal
investigators work for the effective results from the agency. One of the major duties of
the U.S. Marshals Service is to execute the Witness Security Program.140
Till now The U.S. Marshals have protected, relocated and given new identity to more
than 8,500 witnesses and 9,900 of their family members, since the program began in
1971.141
Mainly three organizations are involved in Witness Security Program:142
139
Id. section 21.
140
http://webcache.googleusercontent.com/search?q=cache:http://www.usmarshals.gov/witsec/ (October
22, 2013) .
141
Id
79
 United States Marshals Service that offers safety, health and security
witnesses admitted in the program
 U.S. Department of Justice: Office of Enforcement Operations (OEO) which
permits the admission of witnesses in protection program who faces the
threat to his life due to him becoming a prospective witness in serious
crimes.
 Federal Bureau of Prisons (BOP) which looks into the safety of the
imprisoned witnesses
The admission to the program may be granted in following cases defined by the U.S.
Attorney General's office which is the final authority143 to decide on the admission to the
program:
 Any offense defined in Title 18, United States Code144,
 Any offence of drug trafficking specified in Title 21, United States Code145
 Any other serious crime for which if a witness depose, may result in he
being subjected to intimidation
 Any State offense that is similar in nature to those set forth above
 Any proceedings, civil or administrative nature in which the deposition by a
witness may put his life in danger
Process of Enrollment: It is the state or federal law enforcement agency that has to submit
a request for protection of a witness. The application then is forwarded to OEO
mentioning in short the deposition to be made by the witness and gravity of threat and
intimidation requiring him to seek protection. A preliminary meeting is arranged with
Marshals service to counsel the witness about the kind of measures applied for his
protection during the program.
It is the prosecutor or the law enforcement agency that has to submit an application with
the Marshals Service who organizes the interview. The Marshall Service then has to
recommend to the OEO its opinion as to the admission of the prospective witness. The
142
http://people.howstuffworks.com/witness-protection1.htm (October 22, 2013).
143
Conferred the final authority on the Attorney General under the Organized Crime Control Act of 1970
which is extended by The Witness Security Reform Act of 1984
144
OFFICE OF THE LAW REVISION COUNCIL, (March 12, 2014), http://uscode.house.gov/
download/download.shtml
145
Id
80
final decision as to the admission of the witness rests with the U.S. Attorney General.
Considering that most of these witnesses are criminal themselves, on the proposal of the
Marshals Service and the prosecuting attorneys, the Attorney General or his delgatee has
to assess the danger that such witness or his dependants pose to their new community.
Such assessment must be in writing. The Attorney General has to take into account the
criminal records of the witness, alternatives to protection and the testimony of other
prospective witnesses while considering the protection. The witness will be admitted to
the program if his testimony in the court is more important than the risk posed to the new
community. As soon as he is admitted to the program, he and his family members has to
sign a MOU which shall be explained to them in a clear and simple language making sure
that they understand it. All the communications relating to witnesses there after takes
place through Marshall Service or OEO.
After admission the Marshall Service has to arrange for new identities of the witness and
his family members as soon as possible. There is a total secrecy in all governmental
agencies as to the identity of the accused. The Marshall Service may require the local law
enforcement agencies in the new community, where the witness is placed, to take random
drug and alcohol testing or put other conditions in order to protect the new community as
well. The Marshall Agency helps the victim mainly in following ways:
 To offer one reasonable job opportunity for the witness
 Assistance in finding housing
 Provide survival allowance on average of $60,000 per year
 Providing the documents revealing a new identity for witnesses and his
family members with their changed names for their security
 Counseling sessions may be organized for the psychological, psychiatric
assistance by the trained doctors or social workers146
A 24-hour protection is provided to all witnesses during the times when their life is in
most danger. They are produced before the Court for testimony in a closed security which
makes it impossible for anyone to know the whereabouts of the witnesses.
146
http://people.howstuffworks.com/witness-protection3. (February 12, 2014).
81
The Witness Protection Program is generally recognized as the most important in
combating the major criminal acts like, terrorism, organized crimes, racketeering and
drug trafficking. It is one of the best models existing in the field of witness protection
laws worldwide. The kind of support and cooperation is offered by the different inter-
governmental departments is worth appreciating and following. (For more information, a
comparative chart of Witness Protection measures adopted in different countries is
annexed.)
3.4 UNITED NATIONS OFFICE ON DRUGS AND CRIME’S

REPORT ON GOOD PRACTICES FOR THE PROTECTION
OF WITNESSES IN CRIMINAL PROCEEDINGS INVOLVING
ORGANIZED CRIME147
It was noticed that transnational organized crime has increased and for witness protection
there are no easy solutions. Criminal Organisations are becoming strong and more
diverse. It is essential for successful investigation and prosecution of serious crimes and
multifarious forms of organized crime that witnesses who play pivotal role must have
trust in criminal justice system.
Witnesses must come forward on their own to assist law enforcement agencies and
prosecution. They must feel confident that in case of any threat, intimidation on or any
sort of injury, they will be protected and receive support from the authorities.
Working on this subject the United Nations office on Drugs and Crimes (UNODC) has
developed a come up with Report on Good Practices for the Protection of Witnesses In
Criminal Proceedings Involving Organized Crime (hereinafter called as the Report) to
assist the member states148 in enacting the Witness Protection Programs. The Report is an
outcome of number of regional meetings conducted by the UNODC with expert
representatives from law enforcement agencies, prosecution.
It has discussed available measures and other practical solutions and procedures which
can be incorporated in the legislation considering the socio-political and economic
147
UN OFFICE ON DRUGS AND CRIMES, Good Practices for the Protection of Witnesses In Criminal
Proceedings Involving Organized Crime (2008), (February 23, 2014) http://www.unodc.org/documents
/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_the_protection_of_witnesses
_in_criminal_proceedings_involving_organized_crime.pdf .
148
Parties to United Nations Convention against Transnational Organized Crime, 2000.
82
conditions of the state. The Anti Trafficking section of UNODC has drafted this
publication compiling the good practices relating to witnesses protection in criminal
proceedings mainly relating to organized crime.
The obligation to provide effective protection to the victims and witness149 testifying in
the cases relating to transnational organized crimes is emphasized again and again. The
provisions of the article also apply to victims so far as they are witnesses. The duty is also
casted on the states to motivate the persons who were part of the organized criminal
activity to cooperate the law enforcement agencies in investigating the cases. If they agree
to do so, they must be protected in pursuance of the state obligation under Article 24. To
a great extent the issue of the protection of victims and/or witnesses has been addressed in
the Protocols to Organized Crime Convention supplementing United Nations Convention
against Transnational Organized Crime.150
Witness protection was pointed out as a key area to support the effective implementation
of these two protocols during the third session of the parties to the United Nations
convention Against Transnational Organized Crime.151 In the Bangkok Declaration and
the Declaration of Basic Principles of Justice152, the member states emphasized on the
need of witness protection measures. Accordingly this Report was published by the
UNODC in 2008 guiding the member states as to the best practices adopted by certain
countries in protection of witnesses.
The objectives of the Report are-

1) To create awareness on the issue relating to witness protection
2) To provide a summary of problems faced by countries in protecting the
witnesses against the threat by the criminal groups, the measures and
practices proved successful and unsuccessful in protection of witnesses.
149
Article 24, United Nations Convention against Transnational Organized Crime, 2000.
150
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children and
Protocol against Smuggling of Migrants by Land, Sea and Air.
151
Vienna, 2006.
152
on Synergies and Responses: Strategic Alliances in Crime Prevention and Crime Justice (General
Assembly resolution 60/177) adopted by the 11th United Nations Congress on Crime Prevention and
Criminal Justice and the
Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power (Assembly Resolution
40/34)
83
3) To decide the criteria for the introducing witness protection program.
4) To smooth the progress of a common international approach to witness
protection.
5) To offer a complete picture of the measures, alternatives and procedure
which could be adopted by the states depending upon the socio economic
conditions
Following a holistic approach the Report has identified the various measures that can be
adopted by a state in combating the threats against the witnesses and victims. While
reaching to the conclusion the document has referred to various countries‘ Witness
Protection Programmes and legislations in relation to it. E.g. Australia, U.S.A., China,
Colombia, Germany, Italy, South Africa, also the provisions relating to witness protection
at the ICC and ICTY and ICTR.
Witnesses can be classified as –

1) Justice Collaborators (Accomplice in India)
2) Victim – Witness
3) Other types of Witnesses e.g. expert witnesses
In countries like Australia, Austria, Canada, the informants and intelligence providers by
the police are also entitled to claim protection under the witness protection program;
whereas in certain other countries like Germany, Slovakia only the persons/witnesses
actually participating in the criminal procedure for testifying are entitled to such
protection.
The United Nations Convention against Transnational Organized Crime mandates the
members state to adopt reasonable measures for protection of witnesses in proceedings
relating to the crimes enumerated in the Convention and its protocols which include153 –
1) Participation in an organized criminal group
2) Money laundering
3) Corruption on public sector
4) Obstruction of Justice
153
United Nations Office on Drugs and Crime‘s Report on Good Practices for the Protection of Witnesses
In Criminal Proceedings Involving Organized Crime, pg 33
84
5) Trafficking on persons
6) Illicit manufacturing and trafficking in firearms, their parts, components and
ammunition
7) Smuggling of migrants
8) Other serious crimes encompassing the elements of transnational and
involvement of an organized criminal group.
According to the Report, witness protection program is the last resort to the problem and
experiences have shown that even assistance of other measures have yielded positive
results in reinstating the faith of the witness to volunteer fearlessly to testify in the court.
In many cases, the issues of protection of witnesses might be addressed through the
psychological assistance before and during trial, extending the police security or ensuring
the procedure if the court which provides safe feeling during testimony.
In some countries, regular meetings are arranged for the witnesses‘ pschycological well
being with the police, prosecutors and justice authorities. These meetings are especially
fruitful in cases of child or juvenile witnesses, witnesses suffering from major impairment
of intelligence, social performance or physical disability or disorder that may affect the
quality of their testimony154.
The first and foremost duty of the administration, mostly the police, is to identify the
witnesses who need special treatment and protection during their proximity with the
criminal justice system. The police must comfort these persons through informal
interviews general talks about the court atmosphere, and arrangements and adjustment
with trial procedure. Further support might be needed throughout court hearing and
period immediately afterwards. In many cases the trial may take months or years,
depending upon burden on particular court. Witness assistance is different than witness
protection because the object of former is to achieve well-organized prosecution and
avoid victimization resulting through the reaction of institutions and individuals to the
victim. Witness assistance does not mean the witnesses‘ to be coached as to answer the
questions posed to him during trial. It is pointed out that the assistance services must be
offered by professionals who are independent of the investigating or prosecuting agency.
154
Id at 37
85
It is however possible to give adequate training to investigating agency i.e. police and
prosecution, on regular basis to give such support in appropriate cases when required.
Separate staff can be identified for this purpose which can be part of state welfare support
networks.
In India Legal Aid Services (State) Authorities can be given this responsibility which can
play pivotal role in identifying suitable persons or indirectly involved in a case in co-
ordination with police and prosecution. Personnel involved in this task should be given
training to acquire skills in –
1) Working with witnesses who may be vulnerable
2) Knowing criminal laws, court and police procedure and
3) Capacity to co-ordinate with family members and agencies likely to be
associated with judicial process. (e.g. Social welfare agencies, Non-
governmental organizations(NGO))
The NGOs can play very active and important role in this process, as they posses wide
experience in dealing with vulnerable classes of population (such as women, children,
aged people etc.) It is important that NGOs be recognised before they are allowed to
participate in the process and a regular quality check shall be ensured.
3.4.1 Alternative Measures

Though witness protection program should apply to only certain types of witnesses, in
many countries where witness do not qualify for program special schemes differing in
nature than that of witness protection program, are offered. Where threats are do not
warrant relocation or change of identity of witnesses; alternative measures can be
adopted. Such measures may require the physical protection through police etc. The
purpose nevertheless is to make it difficult to find the traces of the witnesses.
It is not always that witness faces threat to his life. He may suffer due to verbal threats,
intimidation, harassment, assault, property damage, fear of reprisal as a result of their co-
operation with police.155
155
Id pg. 39
86
The Report has given various measures for protection of witnesses applied in different
countries. These temporary measures might be helpful in minimizing the threat and harm
to the witnesses could be summarized as follows:156
1) Temporary change of residence to relative‘s house or nearby town.
2) Close protection – regular visits to the house of witness, escorting him to the
court and back home and providing emergency contact.
3) Requesting Telephone Company for change of telephone number of witness
or assigning him number that is not listed.
4) Monitoring email and telephone calls.
5) Installation of security measures in witness‘s house (security doors, alarm,
fencing, web camera etc.)
6) Minimizing public contact with public in general and uninformed police in
particular.
7) Use of discreet premises to interview and brief the witness.
3.4.2 Procedural Protection Measures

The Report, documents has also discussed procedural protection during trial to ensure
witnesses testify freely, and not under any pressure.
Procedural safeguards can be clustered into 3 categories depending upon purpose.

a) Minimizing face to face contact with the defendant to minimize the fear
through:
(i) Using statements made by the witnesses before the trial starts which
may either be written, recorded through tape or audio visual means.
(ii) Exclusion of defendant in the courtroom.
(iii) Testimony through video conferencing.
b) Making it difficult for defendants to sketch the identity of the witness by;
(i) Using screens, curtain or two way mirror.
(ii) By Anonymous testimony.
156
Id
87
c) Minimizing the exposure of the witness to public and psychological stress.
(i) Changing the venue of trial.
(ii) Not allowing public in the court room during testimony.
(iii) Allowing the witness to the company of support witness during
testimony.
The Accompanying person shall be in close contact with the witness so as inform the
court about the mental condition of the witness and also can ask for breaks if the witness
is unable to face the stress of the situation. The Accompanying person however, shall not
interfere or advice the witness relating to testimony or take objection to a question posed
to him.
3.4.3 Introduction of Witness Protection Program in a State

The decision of a state to introduce witness protection program must be based on a
holistic approach towards the issues existing within the society concerning the rate of
crimes, incidences of aggression against persons contributing to criminal justice system
and most importantly the will of the legislators to prosecute the serious crimes and the
high profile persons involved in it.
Because of serious implications like disturbing the life of individual witness and affecting
the rights of the accused; it is suggested that the Witness Protection Program should be
well grounded; based on legislation or as a policy. It is not necessary however, to
formulate legislation and in certain countries like New Zealand, the program is instituted
as a function of police that must be performed. In Norway and Netherlands it is policy
based and mandating provisions are there in law governing police force.
Whether a State decides to adopt legislation or to formulate a policy regarding witness

protection; following issues must be addressed:157
1) Proposed measures of protection
2) Factors to be considered for admission of witnesses in the program
3) Procedure of witness protection
4) The in-charge Authority for implementation
157
Supra note 140 at pg 54
88
5) Reasons for end of program
6) Rights and responsibilities of parties
7) Secrecy of program‘s operation
3.4.4 Execution of the Program: The Authority

The program can be executed in a State in any of the three ways;
1) by conferring the duties and powers of protection of witnesses exclusively
on police;158
2) by cooperation between inter-governmental organisations like police and
Ministry of Justice;159 or
3) by multidisciplinary institutions like law enforcement agencies, prosecutors,
judiciary and Government authorities.160
All abovementioned categories of countries are examples where witness protection

programmes have proved to be successful.
3.4.5 Organizational Structure

As per Report, document witness protection program could exist at national or regional or
both levels. It is required however, to centralize the decision making process in order to
ensure uniformity in criteria of admission and protection measures to be applied.
3.4.6 Funding
Due to the huge cost incurred for the set up and operation of the witness protection
programs, a large number of countries, especially developing, are unwilling to introduce
it. Expenditure on such programmes differ from country to country depending upon
various factors like cost of living, population size, crime rates, time taken for
investigation, efficiency of prosecution , integrity of criminal justice etc.
Small percentage of police budget is allocated for witness protection. The basic costing
includes-
158
Followed in countries like Australia, Canada, Austria, China, New Zealand, Norway, U.K.
159
Followed in countries like Colombia, Netherlands, South Africa, U.S., Philippines
160
Followed in countries like Italy
89
1) Onetime expense to set up program (which include equipments for the unit,
location etc.)
2) Costs of repositioning
3) Salaries of the staff
4) Travel expenses
5) Payment to witnesses
6) Psychological appraisal and support
Adequate and regular funding by the concerned government is vital for survival of the
program and accessibility of protection facilities under the program. If fixed allocated
amount of budget is not enough then it can be met through special funds. The statutory
provisions can be enacted by the government permitting the use of proceeds of seized or
recovered by the Government for raising funds.
At regional level establishment joint funds in association with Central Government will
help the finance for witness protection.
3.4.7 Principles of Operations

 Confidentiality and Partnerships
Organizational autonomy is the key rule for the effective execution of the any Protection
Program. Thus it is suggested that the Protection Unit must be different from
investigating and prosecution agency to enable it to have autonomy in all its operations.
Only in exceptional situation information can be shared with other police units.
Nevertheless, it is equally important to build up an effective partnership with other
governmental, private, public private and social agencies to arrange for better services for
witness protection. These agencies would ease the burden by providing new identities to
witnesses, the documents relating to it, residences, medical assistance and most
importantly social rearrangement.
 Transparency and Accountability

Maintaining transparency is essential for good governance. In order to keep control or
supervise for effective implementation regular audit should be done. In many countries
this audit is performed by specific authority appointed for this purpose. The request to
90
admit an individual in the program may flow from different sources like, the police,
witness himself, an NGO or even judge.
Generally, witness is required to enter into Memorandum of Understanding with the

authorities, which is understood to be a document defining rights and obligations of both
the parties in question. Whether it is to be treated as an agreement or contract or not,
depends upon whether any failure or lack of services on behalf of authorities renders them
liable for any harm or injury caused. For example the U.S. statutory authority instituting
the program has emphasized that the staff in the program would not incur any liability for
any act done or injury caused due to such act is done for the implementation of the
program.
A memorandum of Understanding generally include161 –

1) A declaration by the witness that HE voluntarily agreed to admission to the
program and that the help provided is not a reward for deposing.
2) The range and nature of proposed protection.
3) A list of possible protection measures to ensure physical security.
4) The duties and penal provisions for violations.
5) The circumstances in which program could be terminated
In cases where the decision of admission is pending but the urgency arises, the
government may provide some temporary measures of protection like162–
1) Supervision at regular intervals
2) Close protection
3) Relocation for temporary period
4) Shielded internment
5) Transfer to special unit within same prison, if witness is serving sentence
6) Financial support
Under the MOU, each party has certain obligations to be fulfilled. They are broadly
summarized in the Report making it obligatory on the part of the protection authority to
161
Supra note 140, pg. 71
162
United Nations Office on Drugs and Crime‘s Report on Good Practices for the Protection of Witnesses
In Criminal Proceedings Involving Organized Crime, pg 76
91
make arrangements for witness and his family members and also for his property, provide
assistance in relocation, providing of necessary documents for change of identity,
providing assistance in new profession and other related matters.
On the other hand witness under the program is obliged not to compromise on provided
protection measures, to obey the directions of protection authority, not to commit crime,
to abide by the restrictions imposed under the MOU relating to non disclosure etc. and
most importantly to provide the information about his own criminal record and the true
and honest testimony in the case he is appearing as a witness.
Liability – In different countries different measures are adopted in case of failure of

protection program. Some countries like Australia, China, Hong Kong Special
Administrative Region of China, legislation provides that entire staff including officers
in-charge of the program who is involved in the witness protection are excused from any
action, suit or proceedings, against an act or omission caused during the implementation
of such programs; provided such act or omission occurred in good faith in the exercise of
power conferred by law. Whereas certain countries like Philippines and Thailand makes a
provision for compensation to the family of the witness in the instance of any injury,
incapacitation or death of the witness during the implementation of the program.
In cases where the rights of a third party are seriously violated due to the admission of a
person in protection program, special provisions could be enacted for their protection
which may include the assistance to witnesses in depositing or disposing off their
property to pay off the debt if needed, to inform the creditors seeking to enforce judgment
the details of assets of witness, to ensure the receipt of summons or other notifications
from the court and in exceptional cases to reveal the name and address of the witness.
3.4.8 Possible Protection Measures

New Identity – Change of identity of a witness is exceptional way to avoid the threat to
the life of the witness which cannot be done by adopting temporary measures. Change of
identity of a witness is nothing but a total new profile given to him for hiding him from
the rest of the world and helps him begin with a new life. It requires the issuance of the
important personal documents like, passport, birth certificate, driving licence, educational
qualifications, identity and citizenship cards etc. with his new name.
92
In some countries like Netherlands, U.K., U.S.A. life of witness is not totally reinvented
but is only changed superficially ensuring that his identity is changed. In any case, it must
be ensured that there is no similarity between the old and the new identity of the witness
giving a slightest hint to any person other than the staff of the protection program about
the witness.
In cases where the witness is a public figure, film actor, artists or media person or a
politician his regular exposure to public makes him easily recognizable. Accordingly
special measures should be adopted for their protection as a witness.
Imprisoned witnesses – When the witnesses admitted to the program are serving in
prison, the responsibility of their security is, generally given to special departments of the
correctional system. These witnesses are normally isolated from other prisoners in order
to ensure their security.
It is however, noticed that isolation of prisoners may result in traumatic psychological

conditions of the prisoner. In order to avoid such situations, some countries suggest for
protected people cross border exchange. But the major hindrances in this process is that
on the one hand very few countries recognize concept of protective witnesses and on the
other hand, even if it recognize it, it needs a decision of its domestic or international
judicial body to imprison such a person.
Future Challenges
Recognising that the world is changing fast and the law needs to cope up with the change;
the Report has pointed certain challenges that needs serious attention while framing the
policies of witness protection. These challenges include:
1) The changing nature of crime like, terrorism, racketeering; resulting in
violence at a large scale affecting number of victims at a time,
2) Development of internet making the world a ‗Global Village‘ which is
beyond control and may result in serious threats to protection programs with
the increasing number of online directories containing the detailed addresses
and other personal information of people. It also poses a risk of disclosure of
the information of witnesses in the program.
93
3) Use of biometrics technology used in recording and recognizing the physical
traits of a person. Increasing use of these techniques in the day to day life
will threaten the free movement of a witness whose identity is changed for
his safety.
This report presented by UNODC is exceptional guide for the States to adopt the suitable
measures for the protection of witnesses to ensure the effective criminal justice system.
The report reveals all the possible solution for the problems which are adaptable to
developed and developing nations. One major conclusion drawn from the report is that
there is a less cooperation and poor teamwork between states which must be improved in
order to combat the serious crimes like cross border terrorism and transnational organized
crimes that puts the national interest and safety at stake.
3.5 THE INTERNATIONAL BAR ASSOCIATION HUMAN

RIGHTS INSTITUTE REPORT163
The International Bar Association Human Rights Institute Report (hereinafter called as
the Report) concerning the balancing of rights of accused, victim and witnesses has
pointed out that the procedural delays in the process of trial at ICC is resulting in
violation of the rights of accused of fair trial. In pointing this out the report also reveals
the concerns relating to the admissibility criteria of the witnesses in the protection
program and the other issues relating to witness protection and its impact of the rights of
the accused.
The IBA has pointed out certain issues relating to the working of the Victim Witness Unit
(VWU) of the ICC which can be summarized as follows:
 Casting a duty on the Registry for the protection of victims (apart from the
witnesses) from the day of lodging an application of their willingness to
participate in the proceedings will unduly tax the VWU both in human
resources and funding.
 The deadlock existing between the Office of the Prosecutor (OTP) and
VWU on the issue of setting up standards for admission of witnesses to the
163
Balancing Rights: The International Criminal Court at a Procedural Crossroads; International Bar
Association Human Rights Institute, published in May 2008.
94
program is serious issue to be addressed immediately by VWU. According
to OTP the standards laid down for admission are too high and must be
relaxed. If the Registrar in given case relaxes the criteria for admission, it
must be communicated to all the Court and all the organs of the Court,
defence and victims to ensure transparency in working.
 It was also suggested by the IBA that the Registry that is statutory authority
to decide on the admission of the witness in the program be the sole
authority to deal with it and no other organ shall interfere in this area
including the prosecutor.
 The IBA also concluded that in order to maintain the transparency in the
proceedings the matters relating to admission and other conditions for WPP
shall be conducted in the presence of all the stakeholders to facilitate them to
raise their concern regarding it.
The IBA then proceeded to point out that the WPP of ICC suffers from the gridlock
between the OTP and VWU over certain issues results in delay in proceedings resulting in
the accused person‘s prolonged detention without trial. It was also observed that the
Prosecutor has failed to make timely referrals to VWU relating to application of witnesses
for protection. This also results in delay of process. The IBA suggested that a better
cooperation is needed between the two organs for effective implementation of WPP and
securing right of fair trial.
Though the report concentrates on achieving a balance between the rights of accused of
fair trial, the rights of victims to participate in the criminal proceedings and the rights of
witnesses to be protected against the threat of reparation; the report effectively point out
the drawbacks existing in the procedure of ICC for WPP. Nevertheless it has asserted that
these drawbacks can be cured by minor changes like improvement in the cooperation
between the different organs of the ICC.
3.6 CONCLUSION
The International criminal jurisprudence has come a long way in recognising the
importance of witnesses in criminal trials. The object of securing the fair trial principles
from the point of view of the accused person is achieved through the instruments like
95
Universal Declaration of Human Rights and International Covenant on Civil and Political
Rights. At the same time recognising the importance of the witnesses in bringing the
perpetrators to justice, the UN ad hoc tribunals and the permanent court of ICC have
sought to frame standards which can be uniformally applied and incorporated in the state
legislations. in 2013, the International Bar Association suggest that there are serious flaws
in the existing witness protection program executed under ICC which needs immediate
correction in order to achieve the intended object with the cooperation from the state
parties. The comparison of the legislations in developed and developing countries reveals
that there are almost common measures that can be adopted for witness protection in any
state depending upon the socio economic conditions of that state. The detailed report of
the United Nations organisation on Drugs and Crime has suggested some universally
applicable measures that could be adopted in the state legislation. The report of
International Bar Association Human Rights Institute published in May 2008 has
suggested the measures on the serious violation of right to fair trial of the accused while
implementing the WPP at ICC.
96

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CHAPTER – III

INTERNATIONAL PARAMETERS FOR THE

3.1 DEVELOPMENT OF THE UNITED NATIONS AND

3.1.1 Universal Declaration of Human Rights

3.1.2 International Covenant on Civil and Political Rights

Article 14 (3) specifically elaborated the rights of accused person as follows:

3.1.3 Convention against Torture

3.2 JURISPRUDENCE OF INTERNATIONAL CRIMINAL LAW

Witness Protection Measures in ICTY

Measures to prevent disclosure to the public or media of the identity or whereabouts of

3.2.2 International Criminal Court

With respect to witnesses, exclusively the following functions are to be performed:

The International Bar Association of International Criminal Court’s Report on

The credibility and effectiveness of the Witness Protection programme is seriously

3.3.2 Witness Protection in Albania

In the below stated circumstances, the ‗special measures‘ may be ended:

The protection to witnesses may be terminated or modified in the under mentioned

In spite of being a developing country, lacking in extraordinary financial resources,

3.3.3 Witness Protection in Canada

If witness is not in favour of disclosure of information, he can make representation

The legislation is a comprehensive document laying down the rights, responsibilities of

3.3.4 Witness Protection Program in United States of America (USA)

Mainly three organizations are involved in Witness Security Program:142

3.4 UNITED NATIONS OFFICE ON DRUGS AND CRIME’S

The objectives of the Report are-

Witnesses can be classified as –

3.4.1 Alternative Measures

3.4.2 Procedural Protection Measures

Procedural safeguards can be clustered into 3 categories depending upon purpose.

3.4.3 Introduction of Witness Protection Program in a State

Whether a State decides to adopt legislation or to formulate a policy regarding witness

3.4.4 Execution of the Program: The Authority

All abovementioned categories of countries are examples where witness protection

3.4.5 Organizational Structure

3.4.7 Principles of Operations

 Transparency and Accountability

Generally, witness is required to enter into Memorandum of Understanding with the

A memorandum of Understanding generally include161 –

Liability – In different countries different measures are adopted in case of failure of

3.4.8 Possible Protection Measures

It is however, noticed that isolation of prisoners may result in traumatic psychological

3.5 THE INTERNATIONAL BAR ASSOCIATION HUMAN

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