Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Protection and Protective Measures
Disclosure of identifying
information
The redaction or non-disclosure of identifying
information has been used extensively by
all Chambers as a measure of protection for
victims, witnesses, sources, intermediaries and
persons at risk on account of the activities of the
Court. According to the Rules of Procedure and
Evidence, redactions are exceptional measures
that may be undertaken only when disclosure
of information could prejudice further or
ongoing investigations or threaten the security
of witnesses, victims or their family members.
A determination of whether redactions are
necessary requires balancing competing
principles: the right of the accused to a fair trial,
the Chamber’s duty to protect the safety and
well-being, dignity and privacy of victims and
witnesses, and the Prosecution’s obligation to
disclose exculpatory material to the Defence.
Trial Chambers I and II’s use of redactions to
protect victims and witnesses was described
extensively in the <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009. 2047
Since that time, the standards for the use of
redactions had seemed somewhat settled.
However, the application and lifting of
redactions in the unfolding jurisprudence of the
Court continue to have important implications
for protection.
The Prosecutor v. Thomas Lubanga Dyilo
The disclosure of previously redacted information
As described in the Trial Proceedings section of
this <strong>Report</strong>, the abuse of process claim 2048 filed by
the Lubanga Defence resulted in Trial Chamber I
issuing a series of decisions between December
2010 and March 2011 that required the Prosecution
to delete redactions from previously disclosed
evidence. 2049 Although the Chamber cautioned that
this information should not be disclosed beyond the
core Defence team, the decision led to the names of
victims, witnesses, and their families being disclosed
to the Defence. 2050 Where possible, the parties or
the VPRS met with victims to determine their views
on the disclosure of their identities. 2051 The OPCV
objected to the disclosures because of security
concerns not only for the victims identified, but also
for those participating anonymously, including victims
participating in the Katanga & Ngudjolo proceedings
before Trial Chamber II. 2052 Subsequently, in June 2011,
Trial Chamber I ruled that the previously-redacted
names of four victims must be disclosed to the
Defence as they were necessary for the preparation of
its defence, despite the fact that the VWU had been
unable to locate them to discuss this possibility. 2053
The Prosecutor v. Germain Katanga &
Mathieu Ngudjolo Chui
Anonymity maintained for the representatives of
deceased victims
In April 2011, Trial Chamber II applied protection
measures to representatives of deceased participating
victims in the Katanga & Ngudjolo case. The
Chamber held that the protective measures granted
to participating victims also applied to those
participating in the name of deceased victims,
including anonymity vis-à-vis the public. 2054 At the
same time, the Chamber noted that participating
victims have progressively consented to disclose their
identities to the parties.
Prior to issuing this decision, the Chamber had
maintained the anonymity of the deceased victims
vis-à-vis the parties until their relations had decided
whether to pursue their claims. It had also ordered
2047 <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p 118 – 125.
2048 ICC-01/04-01/06-2690-Red.
2049 ICC-01/04-01/06-2586-Red; ICC-01/04-01/06-2597; ICC-
01/04-01/06-2656; ICC-01/04-01/06-2662.
2050 ICC-01/04-01/06-2597-Red.
2051 ICC-01/04-01/06-2586-Red.
2052 ICC-01/04-01/06-2586-Red.
2053 ICC-01/04-01/06-2750.
2054 ICC-01/04-01/07-2827.
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