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

Judiciary – Key Decisions Protection and Protective Measures
In cases involving a vulnerable witness or a serious
security concern, the legal representative must inform
the VWU and the requesting party without delay in
order that they may take all appropriate measures.
Specifically, this will require an evaluation by the VWU
of the victim’s physical and psychological well-being,
of the conditions of the proposed questioning and the
need for the presence of a representative of the VWU
during said questioning.
The party wishing to contact the victim must inform
the legal representative, and in the case of a vulnerable
witness, the VWU, of the time, place and date of
the proposed interview at least one week prior. If
the victim, legal representative or the VWU do not
agree to the proposed location, the VWU shall be
charged with identifying an alternative neutral and
appropriate location, in agreement with the party.
If necessary, and exceptionally, the VWU shall be
responsible for transporting the victim to and from
the proposed interview, and accompanying him/her
during questioning. In cases in which the victim is
participating in the Court’s Protection Programme,
the VWU shall organise all practical modalities for the
requested interview with the victim.
Parties shall not question a victim without the latter’s
full and informed consent. Prior to questioning, the
party must explain the subject and purpose of the
questioning, and explain that all statements will be
used before the Court and that the Court may call
the victim to appear as an exonerating witness. In
the event the legal representative does not attend
the questioning, he/she can request that the victim
communicate all relevant information and the content
of the questions, if it would be useful. If the legal
representative is present during the interview, he/
she must not impede the questioning, nor attempt to
influence the victim’s response.
If the legal representative cannot attend, and must
be replaced, he/she can send a member of his/her
team or can request that a representative be sent
from the list of counsel with the Registry. The name
and contact information of the representative must
be communicated to the parties. The representative
will remain under all applicable ethical obligations.
If the party fails to, as a preliminary matter, notify
the victim’s legal representative, it must do so
immediately afterwards. In such instances, if the
legal representative cannot obtain either a copy of the
victim’s statement or its content orally from the victim,
it can request to receive this information confidentially
from the party. The party must disclose material
related to the interview in order to rectify its failure to
inform the legal representative. The party can provide
the related materials either with redactions or in a
summarised form if necessary. The legal representative
must respect the confidentiality of such documents.
In violation of criteria set forth in the proposed
protocol, in early 2010, the Katanga Defence contacted
a victim directly, rather than through his legal
representative despite the LRV’s specific request that
it do so, 2118 which was granted by the Chamber. 2119
According to the victim’s legal representative, the
Defence team presented themselves as individuals
who worked for the Court in order to take the victim’s
statement. Because the victim, who is unable to read
or write, was incapable of conveying to the legal
representative with any precision the content of his
statement to the Katanga Defence, the LRV requested
a copy of the statement from the Katanga Defence,
which did not furnish a copy even after the Chamber’s
oral request that it do so on two occasions. 2120
2118 ICC-01/04-01/07-1671.
2119 ICC-01/04-01/07-1731.
2120 ICC-01/04-01/07-2416, para 3, 4.
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