Protecting Witnesses at the International Criminal Court from Refoulement

Journal of International Criminal Justice (2014)

Amsterdam Center for International Law No. 2015-01

Amsterdam Law School Research Paper No. 2015-04

25 Pages Posted: 28 Feb 2015

See all articles by Emma Irving

Emma Irving

University of Amsterdam - Amsterdam Center for International Law

Date Written: 2014

Abstract

International criminal trials are often contentious in the countries where the alleged crimes took place, and participation in them can place witnesses at risk. Where the risk to a witness is particularly severe, it may not be possible for that person to return home after testifying. In that case, they must be relocated to a safe third country. Many of the witnesses who testify before the International Criminal Court (ICC) can be adequately protected through the court’s witness protection programme. However, the ICC’s witness protection suffers from certain shortfalls that have left some witnesses unwilling to rely on it for their protection. These have turned instead to the to the ICC’s host state, The Netherlands, to claim protection against refoulement. This article argues that many of the shortfalls in the ICC witness protection regime can be addressed by reference to international human rights norms, particularly the prohibition on refoulement, through the interpretative tool in Article 21(3) of the ICC Statute. For the shortfalls that cannot be lessened in this way, seeking protection from The Netherlands may be a viable option. However, the possibility of a non-refoulement claim against The Netherlands, as an alternative to protection by the ICC, does not necessarily solve all of the difficulties facing ICC witnesses.

Keywords: international criminal court, non-refoulement, refugee law, international criminal law, witness protection, rome statute, asylum

JEL Classification: K33

Suggested Citation

Irving, Emma, Protecting Witnesses at the International Criminal Court from Refoulement (2014). Journal of International Criminal Justice (2014), Amsterdam Center for International Law No. 2015-01, Amsterdam Law School Research Paper No. 2015-04, Available at SSRN: https://ssrn.com/abstract=2570819

Emma Irving (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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