Witness Protection

The Challenge of Witness Protection, in The President on Trial: Prosecuting Hissène Habré 381 (Sharon Weill et al., eds., 2020)

12 Pages Posted: 29 Mar 2022

Date Written: March 7, 2022


Witness protection has long been a contentious and expensive component of domestic criminal trials, and it is an even more contentious and expensive component of international criminal trials of genocide, war crimes, and crimes against humanity. In many international criminal cases, the prosecution’s case is based exclusively or almost exclusively on witness testimony. Thus, if witnesses are not willing to testify, then the prosecution’s case will necessarily fail. Indeed, the last few years have seen several high-profile international criminal prosecutions disintegrate when witnesses recanted their inculpatory pre-trial statements and refused to testify. Prosecutors accused defendants and their associates of intimidating the witnesses; victims, NGOs, and even judges lamented their inability to bring the alleged wrongdoers to justice. But the defendants and their associates denied the accusations, the witnesses remained firmly unwilling to testify, and the defendants walked free.
Given the tremendous importance of witnesses to international criminal cases and given the ease with which defendants can credibly threaten harm to those witnesses, one might assume that the international criminal tribunals do everything necessary to provide witnesses with whatever level of protection they need in order to assure their safety and thereby enable them to testify. The international criminal tribunals do spend vast sums – in both financial and human resources – to provide top-quality witness protection, but there are countervailing considerations in the form of fairness to defendants that place limits on the efforts they can and should undertake. Anonymous witnesses are safer witnesses, to be sure, but they are also witnesses whose testimony cannot be adequately investigated or scrutinized by defence counsel. Witnesses who are relocated to peaceful nations are assuredly safer witnesses, but offering relocation provides those witnesses an incentive to fabricate whatever inculpatory testimony is necessary to get themselves on the witness stand and (thereby) out of their war-torn homelands.
Any in-depth examination of international criminal law is apt to reveal a series of compromises. Typically, these compromises mediate between the idealistic principles that courts and legal officials aim to defend and the grimy political realities that surround efforts to prosecute political and military leaders who still command armies, police forces, and treasuries. An examination of witness protection in international criminal law also reveals compromises, but these compromises more often mediate between two principled positions that international courts appropriately and simultaneously seek to uphold. On the one hand, witnesses must be protected from violence. On the other hand, the rights of the accused must be safeguarded. That means that witness protection measures must be calibrated to provide just enough disguise, concealment, or distance to prevent harm to the witness without undermining the defendant’s ability to elucidate relevant facts, raise appropriate questions about the witnesses’ testimony, and generally present a robust defence. And the protection measures certainly should not provide an independent incentive to become a witness in the first place. If witness protection could be measured out in teaspoons, then the careful calibration I have just described might take place. In the messy world of post-conflict justice, by contrast, international criminal tribunals have at various times over-protected and they have under-protected. They have developed legal doctrines on the fly, only to reverse course and develop different doctrines in later cases. Witnesses have lied and witnesses have died. Witness protection stands as among the most crucially important yet excruciatingly difficult tasks that international criminal tribunals undertake. In the following pages, this chapter will explore the witness protection path that international criminal law has forged in seeking to gain accurate testimony, from witnesses who live to tell the tale, in trials that are fair to the accused.

Keywords: Witness Protection, International Criminal Law

Suggested Citation

Combs, Nancy, Witness Protection (March 7, 2022). The Challenge of Witness Protection, in The President on Trial: Prosecuting Hissène Habré 381 (Sharon Weill et al., eds., 2020), Available at SSRN: https://ssrn.com/abstract=4052034

Nancy Combs (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3830 (Phone)

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