The MICT’s opaque practice of varying witness protective measures: time to recalibrate

[T]he Mechanism is making excellent progress with its judicial work in general, all the while continuing to learn from experience, and recalibrating internal practices as necessary to ensure optimal efficiency and economy.


MICT President Theodor Meron’s Address to the UN Security Council, 7 June 2017

Reflecting on last year’s events, I noted how the Mechanism for International Criminal Tribunals (MICT) – the post-conviction judicial institution which has taken over all residual matters of the now-defunct International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) – was working efficiently, though parsimoniously (providing no legal aid to convicted persons unless any claims for post-conviction relief prepared by pro bono defence counsel are found to be meritorious). In retrospect, I should have presented a more guarded and less sanguine picture. It seems I may have been too generous in my assessment. Mea culpa.

Commenting on the MICT, I failed to raise an issue that not only deserves attention, but requires the MICT to seriously consider amending its Rules of Procedure and Evidence (Rules). The Association for Defence Counsel practicing before the International Courts and Tribunals (ADC-ICT), through its Rules Committee, should consider proposing the amendments discussed in this post to the MICT Rules Committee.

At issue is the prevailing practice of favoring ex parte submissions under Rule 86 on matters involving the disclosure of protected witness testimony to national authorities. Peter Robinson, who is representing Dr. Radovan Karadžić on appeal before the MICT, has been dealing with this issue and has brought it to my attention. He also generously shared his insight and suggestions for amending the Rules, which, in no small measure, are reflected in this post. I am indebted.

Recapping on the MICT

The MICT “was established to be a small, temporary and efficient structure” to perform the ICTR’s and ICTY’s remaining functions, following their completion and closure (post-conviction matters and the remaining appeals). It began operating on 1 July 2012 in Arusha, Tanzania, and on 1 July 2013 in The Hague, the Netherlands. Working in parallel with the ICTR and the ICTY during its initial years, the MICT, according to MICT President Theodor Meron, “continues to draw upon the best practices of and lessons learned from both International Tribunals, and from other tribunals, to actively pursue new ways to improve its operations, procedures and working methods, and to maintain flexibility in staff assignments.” In carrying out its multiple functions, the MICT “maintains the legacies of these two pioneering ad hoc international criminal courts and strives to reflect best practices in the field of international criminal justice.”

The prevailing practice before the MICT

Based on available statistics as of June 2017, 45% of the 366 decisions and orders issued between mid-May of 2016 and mid-May of 2017 related to requests for the variation of protective measures and other motions seeking access to confidential evidence or information. These requests were made ex parte by national authorities. Under Rule 86(H), national authorities may seek to rescind, vary, or augment protective measures ordered in proceedings before the ICTY or the ICTR.

Critically, if indeed these statistics are correct (we should have no reason to doubt them since this is what President Meron represented to the United Nations Security Council), then Mr. Robinson is spot on when in an email exchange with me he observed that “the MICT is the most secret court in modern international criminal justice.”

Effectively – and here is where Mr. Robinson and I are in sync – decisions on the disclosure of protected witnesses’ testimony to national authorities based on ex parte submissions infringe upon a convicted person’s due process rights.

First, a convicted person has no notice that a witness in his or her case is likely to give a statement or testify in a national proceeding – based in part on, in support of, or in relation to, the statement or testimony provided during the ICTY or the ICTR proceedings. As such, the convicted person appealing his or her conviction and sentence or seeking post-conviction review cannot follow up and obtain the statement or testimony from the national proceedings. These statements or testimony are relevant because witnesses may provide inconsistent information, contradicting what was provided during the ICTY or the ICTR proceedings, demonstrating their lack of credibility. Mr. Robinson recalled that at the ICTR, many witnesses were not relied upon by the Chambers because they subsequently testified differently during the Gacaca proceedings in Rwanda (mediation-type process designed to promote peace, reconciliation, and rebuilding after the Rwandan genocide),1   Historically, Rwandans had a mediation-type process at the local level that was called “Gacaca,” which referred to meeting on the grass. Traditionally, Gacaca was a community meeting conducted by elders to find a way to resolve disputes arising within the community. See Organic Law No. 08/96 of 30 August 1996, amended by Organic Law No. 16/2004 of 19 June 2004, and by Organic Law No. 10/2007 1 March 2007. and how in Ntakirutimana, an OTP witness relied upon to convict Mr. Gerard Ntakirutimana went on to recant his testimony in a subsequent trial in Canada.2   Prosecutor v. Ntakirutimana, MICT-12-17-R108.1, Decision on Allegations of False Testimony, 20 November 2017.

Second, a Chamber or a Single Judge is deprived of submissions and views from both parties before rendering decisions on witness protection issues, which, invariably, become part of the MICT jurisprudence that other Chambers or Judges will rely on as precedent. This lopsided approach of excluding the defence from participating in these proceedings has the potential of negatively affecting the way in which defence witness information is disclosed to national authorities. Mr. Robinson gives a poignant example:

In a series of decisions based on ex parte submissions, the MICT decided that where the Witness Support and Protection Unit (WISP) could not locate a witness, there was good cause to vary the protective measures for that witness and disclose his/her identity and testimony to national authorities. Although these cases have arisen in the context of former ICTY cases, the jurisprudence is problematic in the ICTR context, where many defence witnesses fear repercussions if the Rwandan government were to learn their identity or the substance of their testimony. Had I been given the opportunity to make submissions on this issue, I would have argued that no disclosure should be made unless the national authorities could locate the witness and put the WISP in touch with the witness to seek his/her views.  If the witness cannot truly be located, there is no reason to disclose the testimony to national authorities since the person could not be a witness if s/he cannot be found.

Third, continuous ex parte communications between a Chamber or a Single Judge and the OTP promotes the appearance of bias and undermines the confidence of the convicted persons and the public in the impartiality of the MICT Judges. 

What should be done?  

Unquestionably, there is a need to recalibrate the current ex parte practice of filing and considering applications to vary protective measures under Rule 86. One obvious solution would be to amend the Rules so that unless good cause can be shown (i.e. a finding is made that disclosure to the other party would potentially endanger the witness or adversely interfere with any ongoing investigations by the national authorities), applications must be heard inter partes. And where the circumstances may require ex parte proceedings, the Judge or the Chamber should appoint an amicus curiae defence counsel to represent the interests of the defence. Amending Rule 86 as such would not only add the necessary due process protections currently missing due to the prevailing ex parte practice, but it would also add some sorely missing transparency to the MICT proceedings.

And speaking of transparency, consideration should also be given to amending Rule 92, which requires that all proceedings, other than deliberations of the Chamber, should be public unless otherwise provided. It seems sensible to add that public redacted versions of all decisions should be filed, save for instances where a Chamber or a Judge finds that it would potentially endanger a witness or adversely interfere with any ongoing investigations by the national authorities.

 Proposed amendments to MICT Rules

Rule 86 (L)

An application to vary protective measures should be heard inter partes unless a Judge or a Chamber finds that disclosure to the other party would expose the witness to danger or interfere with ongoing investigations. In the case of such a finding, the Judge or the Chamber shall appoint an amicus curiae defence counsel to represent the interest of the defence during any ex parte proceedings. The amicus curiae defence counsel shall (1) not disclose the contents of the matter to the accused, convicted person or defence counsel, (2) shall make submissions on any legal issues involved, and (3) shall follow up to seek reclassification of the pleadings once the witness has testified in national proceedings.

Rule 92

Open Sessions

  1. All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.
  2. Public redacted versions of all decisions shall be filed unless a Judge or a Chamber finds that to do so would subject a witness to danger or interfere with ongoing investigations.
  3. Where the basis classifying a decision confidential no longer exists, whosoever instigated the classification, shall apply to a Judge or a Chamber to reclassify the decision. A Judge or a Chamber may also re-classify a decision proprio motu.

Next Step

My next step is to formally propose these amendments to the ADC-ICT to be considered. Hopefully the ADC-ICT will forward them on to the MICT Rules Committee – subject to any adjustments, of course. So, if anyone has any ideas on these issues or any suggested language to these proposed draft amendments please chime in.

Share

Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

Leave a Reply

Your email address will not be published. Required fields are marked *