Claire Smith and Fanni Andristyak join JiC for this post on ongoing efforts to ensure that witnesses at the International Criminal Court are adequately protected. Claire is currently at the UNESCO Secretariat examining the protection of cultural heritage in armed conflict and previously interned with a defense team at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Fanni is a research intern at the British Institute of International and Comparative Law prior to which she worked for the Defence Team of Ratko Mladic at the ICTY.

A witness testifies during proceedings at the International Criminal Court (Photo: ICC / CPI)

International criminal justice has a witness problem. In April this year, by a majority, the Judges in the trial of Joshua arap Sang and William Ruto concluded that the prosecution’s case wasn’t strong enough for the trial to continue. Nonetheless, as one judge remarked, it found that the extent of direct and indirect interference with witnesses was ‘enough to make acquittal of the accused grossly unjust’. But the end of the Ruto and Sang trial does not signal a new problem for the ICC; witness tampering in modern international criminal justice has been apparent since Tadić. What it does do, however, is propose a new solution, one without precedent.

Based on existing law, ICC Judges in the Ruto and Sang trial had two conceivable outcomes for the ‘no case to answer’ motions put forward by the Defence: acquit or order a continuation of the proceedings. Their Decision appears to represent a compromise option: vacating the charges against the accused without prejudice to later prosecution. Neither acquittal, nor continuation.

Was it acceptable — from a policy perspective — for the ICC Judges to introduce this concept (essentially the equivalent of mistrial) into international criminal law in order to deal with the effects of witness tampering? Is this new tool likely to achieve the aims for which it was adopted? And if so, at what cost?

Nothing New

Threats, intimidation, injury, bribery, or any other types of coercion of potential or actual witnesses can be issues in any jurisdiction. However, it is and has been especially problematic for international criminal adjudication.

Two comparable cases from the ICTY, Haradinaj et al. and Šešelj, serve to illustrate the ordinary way witness tampering was dealt with up until April this year. In both cases the Judges established that:

(i) a climate of intimidation existed;
(ii) witnesses were intimidated;
(iii) these circumstances could have had a substantial impact upon the outcome of the proceedings; yet
(iv) the Accused were found not guilty and were thus acquitted.

Therefore, neither the problem of witness tampering, nor its substantial effects on the proceedings appear to confront international criminal judges with a new situation.

Anything New? Heal the World

The Ruto and Sang case matches the first three of the above four characteristics. In addition, unlike in Šešelj and quite like in Haradinaj, neither of the Accused were linked to the interference. Based on existing precedent, when the Chamber found that the Accused had no case to answer, an acquittal should have followed. But it didn’t. Is that because this case is different from those previously before international tribunals? Or is the ICC itself different?

As Judge Eboe-Osuji explicitly states, the Majority’s “disposition is unusual”. However, in his account of the circumstances, nothing emerges that would set the case apart from Haradinaj, where it was “the serious witness intimidation that formed the context of the Trial”. What (extra-judicial) consideration would then warrant the adoption of a new approach into international criminal law?

Judge Eboe-Osuji emphasised the need to send a message that political intervention will only result in mistrial and that “extra-judicial conducts, campaigns or demands could not influence the Chamber to acquit or convict the accused”. He stressed that justice must be realised regardless of consequences. In the words of the Judge, “what controls the appropriate result in the circumstances is the public’s interest in seeing justice done — or conversely the need to avoid perversion of justice at all, let alone the scandal of it in the full public view of the whole wide world.”

The obvious undercurrent to the proceedings, clearly, was a “sense of justice” that had not yet been visibly embodied in a rule or precedent in international criminal law. That, is, up until now. Without addressing issues of its legality, let us consider this conceptualisation of justice in the framework it was borne out of: judicial policy-making.

The Ends and The Means

One possible, or at least intended, benefit of declaring a mistrial is to fulfil the aim of deterrence. The Decision purports to send a message to States, the media and any other third party about the futility of non-compliance and obstruction of justice. As stated, it could, at best, ‘only’ result in mistrial.

But there are two problems with this assumption. Firstly, effective deterrence (if it exists at all) would require foreseeability both as to the conduct that may lead to mistrial and as to its potential consequences. However, neither the former nor the latter is fleshed out in sufficient detail in the Decision. As for the conduct, it appears that at its lowest, it may be legitimate media reporting which can still ‘result in declarations of mistrial when media commentary, even with the best intentions, contributes to the tainting of the values of a fair trial’. As legal standards go, negligent contribution to the tainting of the values of a fair trial is a particularly vague one.  As for the consequences,  what mistrial at the ICC in reality entails remains uncertain, as the issue of admissibility may have to be resolved again if the Prosecutor decides to ‘start afresh another time, if she wishes’. For the very same reason, the aim to allow for a fresh prosecution may not be achieved either.

A second problem is that, when the alternative to a mistrial is a conviction, the effectiveness of deterrence becomes even more questionable. Potential offenders may see a mistrial as a ‘win’ or a delaying tactic and view witness tampering as a rational choice, a risk worth taking.

Another aim of declaring a mistrial is to offer a degree of justice or fairness to victims that wouldn’t be possible if alleged perpetrators were acquitted and thus judged ‘innocent’. Reactions from Kenya are unequivocal on this point: there is a great deal of disappointment.  The difference is only a nuance for now: Ruto and Sang are free men.

In the face of all these intended but perhaps unattainable benefits, there are serious drawbacks to declaring a mistrial. For one, it risks encouraging witness intimidation. As the proceedings against Ruto and Sang were terminated without prejudice, the ruling exposes known and potential witnesses to continued and ongoing intimidation. Unlikely as it is, the Prosecutor may at any time decide to start her case afresh. Consequently, whoever had an interest in preventing (potential) witnesses from testifying continues to hold the same interest. As the case lingers on for the Accused, it does so too for the witnesses.

Secondly, the adoption of a mistrial ruling creates legal uncertainty. Partly because of the (above discussed) vagueness in qualifying the conduct. Partly, because its applicability to circumstances where the Defence has difficulty in getting witnesses to testify – due to, for example, the State having an interest in convicting the Accused – remains unclear. The only standard seems to be that evidence of the extent of interference should be enough to make the conviction of the accused grossly unjust. Realistically, the Defence will have little success in meeting that standard. Firstly, because of the comparatively fewer resources it has to investigate and thus prove interference. Secondly, because the issue would in all likeliness arise after the Prosecution’s case has been closed and the Defence case started. This in turn means that the Prosecution has presented enough evidence for the Defence case to commence. In these circumstances, even if the Defence is unable to call even one witness, it seems difficult to imagine that any judge would deem conviction grossly unjust in the face of Prosecution evidence that, taken at its highest, could lead to conviction. It would essentially require the declaration of mistrial where the Prosecution presented potentially sufficient evidence while the Defence, at the extreme, presented nothing. If anything, that would probably appear – in the words of Judge Eboe-Osuji – as a scandal “in the full public view of the whole wide world”.

Thirdly, the Decision does not exactly encourage a more diligent approach by ICC prosecutors in the future. Issues with double jeopardy aside, it may provide for a second chance in situations where a State is not helpful, or where the case is genuinely weak.

Finally, there is the issue of the legality of the Decision and therefore its impact upon the legitimacy of the Court. There is a danger of ICC mission creep and, more specifically, the activism of its Judges who take it upon themselves to try and influence Government policies from the bench as well as the behaviour of third parties who may unintentionally risk indirectly interfering with (potential) witnesses.

When the Means Don’t Suit the Ends

Ultimately, what emerges from this quick assessment is that the ends put forward in the Decision are unlikely to be achieved by the means employed by the ICC Judges. Instead, they may only give rise to new issues that affect everyone with a stake in international criminal justice.

Judges at the ICC are not responsible for leading us into a better world. When it comes to mitigating or preventing the effects of witness tampering, the role of the Trial Chambers is to maintain the integrity and fairness of the proceedings by granting protective measures where necessary, facilitating testimonies, hearing contempt cases, and factoring in intimidation in provisional release decisions. Should all these efforts fail, and irrespective of the desire to see the outcome as ‘just’, the lesson to be learned is the necessity of improving the protection of witnesses.