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Judiciary – Key Decisions Legal Representation
Counsel for Witnesses
Although the Rome Statute itself does not
include provisions regarding the potentially
self-incriminating statements by witnesses,
Rule 74(10) of the Rules of Procedure and
Evidence provides that if a witness is at risk of
self-incrimination, ‘the Chamber shall suspend
the taking of the testimony and provide the
witness with an opportunity to obtain legal
advice if he or she so requests for the purpose of
the application of the rule’. In addition, Rule 74
sets out specific guarantees the Chamber is at
discretion to offer to these witnesses to ensure
their continued testimony. For the first time in
June 2009, in the Lubanga case Trial Chamber I
stated that Prosecution Witness 15 2021 was
entitled to full and proper legal advice regarding
self-incrimination. 2022
In 2011, the issue of counsel for witnesses arose
in the case of Ruto, Kosgey and Sang in the Kenya
Situation. The Ruto and Sang Defence each called two
witnesses to testify during the confirmation of charges
hearing. Two of these witnesses were at risk of selfincrimination
and the Chamber accordingly ordered
the Registry to appoint independent legal counsel to
assist these witnesses and to provide them with legal
advice as to their testimony and their rights under the
Rome Statute.
On 12 August 2011, the VWU submitted to the
Chamber the ‘Victims and Witnesses Unit’s Unified
Protocol on the practises used to prepare and
familiarise witnesses for giving testimony’. 2023 This
Protocol set out that it is the responsibility of the
Registry to arrange independent legal advice from a
2021 Witness 15 testified on 16 June 2009 and made
allegations against a Prosecution intermediary
(Intermediary 316). He claimed that the statement he
gave to Prosecution investigators was incorrect and
that he had been persuaded by Intermediary 316 to tell
lies. Several other witnesses also claimed interference
from intermediaries in their testimony and the use of
intermediaries emerged as a live issue in the Lubanga
case. For a more detailed discussion of these issues, see
<strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 139-144.
2022 ICC-01/04-01/06-T-192-Red-ENG, p 13 lines 2-19.
2023 ICC-01/09-01/11-259. The same protocol was filed in the
case against Muthaura et al (ICC-01/09-02/11-260-Anx),
however no witnesses appear to have been at risk of selfincrimination
in this case.
qualified lawyer once it has been made aware that the
witness may make self-incriminating statements. It is
the responsibility of the party calling the witness to
identify witnesses at risk of self-incrimination and to
notify the VWU accordingly. 2024 The VWU subsequently
notifies the CSS within the Registry, who will appoint
a duty counsel from the Court’s List of Legal Counsel.
The VWU, in turn, is responsible for facilitating the
contact between the witness and his/her appointed
duty counsel. The responsibility of the duty counsel is
strictly limited to issues arising from self-incrimination
and he/she cannot discuss other aspects of the
witness’ testimony. 2025
In the decision on the schedule for the confirmation
hearings of 25 August, the Single Judge stated
that ‘should one or more of the witnesses desire
to be assisted by way of legal advice, the Registrar
shall arrange for the legal adviser to provide the
necessary support for the witnesses from outside
the courtroom’. 2026 On 30 August 2011 the Chamber
received the ‘Victims and Witnesses Unit’s information
report on the preparation and familiarisation of viva
voce witnesses in the field’, 2027 in which the Ruto and
Sang Defence teams indicated that they want to
request legal assistance for the benefit of witnesses
KEN-D09-0001 and KEN-D11-P-0001, pursuant to Rule
74 2028 of the Rules of Procedure and Evidence.
In a decision on 30 August 2011, Single Judge
Trendafilova, recalling Rule 74 of the Rules of Procedure
and Evidence, ordered the Registrar to provide
witnesses KEN-D09-0001 and KEN-D11-P-0001 with
independent legal advice from a qualified lawyer,
before the start of the courtroom session when the
witnesses are expected to testify and also during any
break in the course of the confirmation of charges
hearing, and ordered the Registrar to arrange the
necessary facilities for consultation between witnesses
and legal adviser. 2029 The Single Judge also instructed
the Registrar to be ready to provide independent legal
advice, under identical conditions set out in paragraph
10 and the Unified Protocol, to any other witnesses
who may require it in the present case. 2030
2024 ICC-01/09-02/11-260-Anx, para 56.
2025 ICC-01/09-02/11-260-Anx, para 63.
2026 ICC-01/09-01/11-294, para 22.
2027 ICC-01/09-01/11-303-Conf-Exp, this filing does not
appear to be part of the public record of the case.
2028 Rule 74 deals with potential self-incrimination by
witnesses.
2029 ICC-01/09-01/11-304, para 10.
2030 ICC-01/09-01/11-304, para 11.
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