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

Judiciary – Key Decisions Protection and Protective Measures
their legal representatives to indicate whether their
families agreed to disclose the deceased victims’
identities to the parties, and whether they planned to
request protective measures. 2055 Following agreement
by the family representatives of the deceased
victims to disclose both their own and the victims’
identities to the parties, the Chamber authorised the
representatives designated by the families of two of
the deceased victims to resume the victims’ actions,
and ordered the Registry to disclose their identities to
the parties. 2056 It reserved its decision regarding the
other two victims, pending the provision of additional
information.
Prosecution’s appeal on the Protocol on
investigations in relation to witnesses benefitting
from protective measures rejected
In September 2010, Trial Chamber II rejected the
Prosecution’s request to appeal its April 2010 order to
implement the Protocol on investigations in relation
to witnesses benefiting from protective measures. 2057
The Protocol provides for the non-disclosure of
the names of protected witnesses to third parties
during the course of investigations. In April 2010, the
Chamber had approved the Protocol, 2058 developed
by the VWU in consultation with the Defence teams
and legal representatives of victims. As described by
the Chamber, the ‘language of the Protocol places
sufficient emphasis on the fact that the names of
protected witnesses should be disclosed only in
exceptional circumstances’ and ‘prohibits disclosure
to a third party of the fact that a protected witness
is a witness or is involved with the Court’. 2059 In its
approval, the Chamber expanded application of the
Protocol as drafted from protected witnesses to include
protected victims as well. 2060
on the fact that its decision to implement the Protocol
was well within its discretion and that the Protocol
had been developed with extensive reliance on the
expertise of the VWU. 2062
Redactions applied to Defence sources of
information
Redactions were also used to protect Defence sources
in the Katanga & Ngudjolo trial. Trial Chamber II
authorised the permanent redaction of the source of
three items of evidence introduced by the Katanga
Defence after finding that no less restrictive measures
would suffice. 2063 The Chamber found the source to
be a person ‘at risk on account of the activities of the
Court’, who provided the items of evidence ‘in violation
of strict confidentiality obligations’ after the Defence
was unable to obtain the documents from the DRC
authorities.
In its request to appeal the decision, the Prosecution
had argued that the Protocol did not provide sufficient
protection for witnesses because it was not preceded
by a case-by-case evaluation of the risks to them. 2061
While determining that the procedure set forth in
the Protocol properly balanced the need to secure the
protection of witnesses with the rights of the Defence,
in its decision to reject the application to appeal, the
Chamber expressly noted that the Prosecution was
free to follow more stringent guidelines. In denying
its application to appeal, the Chamber did not address
the Prosecution’s arguments, instead basing its ruling
2055 ICC-01/04-01/07-T-104-Red-FRA, p 33-34.
2056 ICC-01/04-01/07-3018.
2057 ICC-01/04-01/07-2375.
2058 ICC-01/04-01/07-2047-tENG.
2059 ICC-01/04-01/07-2047-tENG, paras 10-11.
2060 ICC-01/04-01/07-2047-tENG, para 15.
2061 ICC-01/04-01/07-2047-tENG.
2062 ICC-01/04-01/07-2375.
2063 ICC-01/04-01/07-3057.
318