ICC judges set out rules for witness interviews

By Felix Olick

Lawyers preparing to defend four Kenyans accused of crimes against humanity can now interview protected prosecution witnesses, but only with their consent.

International Criminal Court prosecutors can also interview defence witnesses under the same rules. This follows a court decision Friday on a deal on how to handle confidential information and how to make contact with witnesses the opposing  party intends to call.  ICC prosecutors have also been seeking more access to their own protected witnesses to prepare them for trials next year.

According to new rules announced by the ICC Pre-Trial Chamber V, all parties must submit all questions to potential prosecution witnesses through the ICC in writing, as well as a list naming everyone with whom the answers would be shared. 

Witnesses must be told why the information is needed and the possible consequences of giving it out. They can refuse to answer any of the questions or to be interviewed. 

These are just some of the tough guidelines set out to protect those getting ready to testify against Uhuru Kenyatta, William Ruto, Francis Muthaura, and Joshua arap Sang in March. 

The guidelines come barely a week after ICC Chief Prosecutor Fatou Bensouda claimed some witnesses have been intimidated or compromised and have declined to testify. She did not indicate which of the two Kenya cases was affected by what she described as the instances of “bribery, forced disappearances, executions and threats to life”.

Bensouda applied to the court for access to the protected witnesses ahead of the trials to ensure “adequate preparation”. 

Last month, ICC judges refused to release key documents or confirm the identities of three witnesses whose credibility had been questioned by Deputy PM Uhuru Kenyatta’s defence team.

Under the new rules, the defence team must put their questions to prosecution witnesses 4, 11, and 12 in writing through the Victims and Witness Unit (VWU).

Interview arrangements
The VWU shall seek the consent of the individuals on behalf of the court and make the arrangements for an interview.

But in doing so, the defence is prohibited from attempting to influence the witness’s decision as to whether or not to agree to be interviewed. 

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