International Criminal Court (ICC)—DRC/Lubanga: Protective Measures

Confirmation Hearing Postponed
The International Criminal Court (ICC) has officially postponed the confirmation hearing in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo).^[1] The Pre‑Trial Chamber I will specify a new date for the hearing at the status conference scheduled for Tuesday, September 26, 2006.^[2]

Pre‑Trial Witness Protection Decision
In the ongoing debate regarding the protection of alleged victims and potential witnesses, while permitting adequate access and disclose of information between the parties, the Pre‑Trial Chamber I has announced a two‑tiered system.^[3] The decision does not address any of the underlying criteria for non‑disclosure of identity.^[4]

The plan establishes different protocols for witnesses who are part of the witness protection program run by the Victims and Witnesses Unit (VWU) and those who are not.^[5] The decision also distinguishes between, but does not necessarily impede, contact between a party and the opposing party’s witnesses.^[6]

For protected individuals:

• Contact between a party and its own witnesses must be arranged through the VWU; and
• Contact between a party and non‑party witnesses must be arranged through the VWU, subject to prior approval from the Pre‑Trial Chamber.^[7]

For non‑protected individuals:

• Contact between a party and its own witnesses is not regulated;
• Contact between a party and non‑party witnesses must be arranged through opposing counsel;
• Opposing counsel may be present during interviews between a party and a non-party witness; and
• Witnesses must give consent before any contact information can be provided to opposing counsel.^[8]

Other general requirements regarding protected witnesses include:

• Defense counsel, but not the Prosecution must provide the Pre‑Trial Chamber with a list of names of team members who “have access to non‑public information and/or materials;”
• Both sides are responsible for confidential information in the hands of departing team members;
• Both sides must undergo training from the WVU and presumably will be considered responsible for the acts of team members, including investigators; and
• The Registrar is asked to treat cooperative negotiations with the DRC, other States Parties, non‑States Parties, and intergovernmental agencies regarding protective measures for individuals as “urgent.”^[9]

The Court did not discuss any sanctions that could apply for failure to adhere to the terms of the the decision. Generally, the Court may sanction individuals, including officers of the Court, for misconduct under Article 71 of the Rome Statute and Rule 171.^[10] Sanctions include “interdiction” from the proceedings for 30 days or more and fines beginning at €2,000 (US $2,550).^[11]

Although this order is only effective with regard to the parties’ preparation for the confirmation hearing, the Pre‑Trial Chamber stipulated that “in the event the charges are confirmed, the said general measures could also be applicable to those proceedings leading to the commencement of the trial.”^[12] The Trial Chamber would have the authority to adopt the measures for the purposes of trial.^[13]

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[1] ICC Media Advisory: Confirmation of Charges Has Been Postponed, ICC-20060921-163-En, Sept. 21, 2006 [hereinafter Postponement]. See also Prosecution’s Request to Schedule a Status Conference by 22 September 2006 the Latest on the Start of the Confirmation Hearing and to Provide Information to the Parties Concerning the Conduct of the Confirmation Hearing, ICC-01/04-01/06-450, Sept. 20, 2006 (the postponement is responsive to the Prosecutor’s request that the postponement be declared prior to the September 26 status conference, given the many factors affecting the parties’ ability to meet that date).
[2] Postponement supra note 1.
[3] Decision on a General Framework Concerning Protective Measures for Prosecution and Defence Witnesses, ICC‑01/06‑01/06‑447 [hereinafter Decision].
[4] Id.
[5] Id. at 6-7.
[6] Id. at 6-7.
[7] Id. at 6.
[8] Id. at 6-7.
[9] Id. at 4-6.
[10] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 71. See also Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rule], Rule 171(1).
[11] Rule 171(2)-(4).
[12] Decision supra note 3 at 4.
[13] Rome Statute, Art. 64.