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

Judiciary – Key Decisions Protection and Protective Measures
eighteen hours a day and deprived of group contact.
On 15 July, Trial Chamber II issued an order to improve
the conditions of the detained witnesses, specifically to
reduce their periods of isolation and to increase their
contact with those outside the detention centre. 2168
The Chamber suggested that the detained witnesses
have access to the sports field when it is not being
used by those detained for the ICTY. Given the size of
the field, they can be released at the same time as the
accused, as long as someone can ensure there is no
verbal communication between them. The Chamber
also allowed the detained witnesses to spend time in
each others’ cells and have meals together, effective
immediately. In addition, the Chamber ordered the
Registry to contact the DRC to determine if it were
possible to expand the list of telephone contacts for
humanitarian reasons for two of the witnesses, as well
as the number of contacts for the third witness, who
notably has only one. It noted that, according to their
counsel, the restriction on outside contact impeded
their ability to obtain the necessary evidence for their
asylum claims.
2168 ICC-01/04-01/07-3078.
The Prosecutor v. Thomas Lubanga Dyilo
Trial Chamber I also considered the circumstance
of a detained witness in the Lubanga proceedings.
The detained witness in Lubanga was transferred to
The Hague together with the three other detained
witnesses who appeared in the Katanga & Ngudjolo
case and also filed an asylum application with the
Dutch authorities. 2169 In contrast to the series of public
filings and a public status conference in the Katanga
& Ngudjolo case, the issue was considered through a
series of confidential filings and an ex parte hearing
in the Lubanga case, and was made public only upon
the issuance of a decision by the Trial Chamber on
5 August 2011. 2170
Despite not having requested protective measures
prior to testifying, on the last day of his appearance
before Trial Chamber I on 7 April, the detained witness
described being covertly filmed upon boarding the
plane to Europe. He also mentioned threats against
him in 2004. On 1 June 2011, he requested special
protective measures pursuant to Rule 88(1) of the
Rules of Procedure and Evidence, specifically to stay
his removal to the DRC and to facilitate his asylum
application. 2171 The request asserted that the witness
had ‘seriously challenged’ individuals within the
current Congolese government, which have the
capacity to endanger his and his family’s security. The
special protective measures were requested pursuant
to Article 68(1), alleging that the measures applied
by the VWU were ineffective given his status as a
detainee. Trial Chamber I stayed the removal, and
like Trial Chamber II, it ordered the Registry to ensure
that the detained witness had access to the lawyers
representing him for the purpose of his asylum
claim. 2172
Trial Chamber I further requested observations by the
parties and the Registry as to an assessment of the
risks posed to the witness should he be returned to the
DRC, and whether he is entitled to file an application
for asylum. The Defence supported the witness’ right to
seek asylum, asserting that Article 93(7) of the Statute,
providing for the temporary transfer of a witness
to the Court, must be read in light of Article 21(3),
requiring all provisions to be interpreted in accordance
with international human rights norms. Both the
Prosecution and the Registry expressed doubt about
the witness’ security concerns. The Prosecution noted
his voluntary appearance before the Court and the
2169 The filing does not appear to be part of the public record
of the case, but is discussed in ICC-01/04-01/06-2766-
Red.
2170 ICC-01/04-01/06-2766-Red, paras 7, 8.
2171 ICC-01/04-01/06-2745-Conf, cited in ICC-01/04-01/06-
2766-Red.
2172 ICC-01/04-01/06-2766-Red, para 14.
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