Over the past decade, the international criminal tribunals have encountered extensive problems with witness intimidation. This has led to the injury and death of individuals, and to the withdrawal of testimony and the dropping of charges. There are two main ways in which this problem can be concurrently approached: by detaining the accused in custody, and by protecting the identities and welfare of witnesses. Both of these, however, incur a degree of prejudice to the accused. This Essay explores the extent of the problem, and the degree to which each of these methods can be fairly employed to safeguard both the welfare of witnesses and victims and the interests of justice.
The security of witnesses is of great importance to international tribunals. The intimidation of individuals who propose to testify for or against an accused is not only dangerous on a human level for witnesses and their families, it also undermines the integrity of the trial and the quality of justice delivered for the victims of the gravest crimes. The nature of the crimes prosecuted by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) is that they tend to expose witnesses to greater threats than might ordinarily be experienced in domestic jurisdictions. An important objective of these tribunals is to produce justice for large populations that have suffered extensively.1 The process requires that victims participate as witnesses, and it is counterproductive if prosecuting those perpetrators perpetuates risks of danger or creates new risks to them.
Accordingly, the ad hoc tribunals, like other domestic and internationalized jurisdictions, go to great lengths to protect the interests of victims and witnesses.2 At the International Criminal Court (ICC), there is an independent duty on the Chamber to "take appropriate measures to protect the safety, physical and psychological well-being . . . of witnesses."3 Despite the best efforts of the tribunals, however, the incidence of witness intimidation has been unacceptably high.4 This Essay examines the extent of the problem and the merits of the available solutions. Part II gives an overview of prominent instances of witness intimidation at the ICTY, the ICTR, and the ICC. Part III considers the use of preventative detention of defendants and the extent to which it can and should be done without coming into conflict with the rights of the accused. Part IV examines the evolution of witness protection programs and the effectiveness and limits of different protective measures.
II. THE PROBLEM
Witness intimidation has been a grave problem at both the ICTY and the ICTR. At the ICTY, in Prosecutor v. Tadic, threats to the victim's family resulted in the victim's withdrawal as a witness and, in the absence of sufficient evidence, forced the charges to be dropped.5 Tadic was not only the first defendant to come before the ICTY,6 but the first defendant to ever face charges for rape as a crime against humanity.7 Rape trials are particularly susceptible to interference by witness intimidation because of the personal and traumatic nature of the crime,8 and their typically heavy reliance on the testimony of the victim.9
This is by no means an isolated problem. The rape conviction recorded in Prosecutor v. Kunarac10 came with great difficulty, after several witnesses either refused to testify or unexpectedly withdrew on late notice.11 Female refugees testifying at the ICTY in 1998 feared reprisals if sent back to Bosnia, and high-level tribunal officials reportedly lamented that the level of intimidation "exposed our inability to protect people."12 In 2000, allegations leveled against the accused and his counsel in Prosecutor v. Avramovic and Simic of intimidating and bribing several witnesses to the case "raised grave suspicions."13 In the same year, a "potential witness" for the prosecution was killed under questionable circumstances. …