camera hearings (that is, hearings that are closed to the public), or requests
for identity concealment from the public.
For example, the ICC allows the possibility to maintain confidentiality
where there exist concerns for the personal safety of the witnesses or their
families.200 The ICC will ordinarily consider the following factors in
determining whether such a threat exists:
• The degree of physical risk;
• The need for and reliability of the testimony;
• Whether the full testimony is conditional upon confidentiality;
• Whether statements will reveal matters of national security; and
• Whether the court, tribunal or commission may be able to
subsequently prevent disclosure of the victim/witness’ identity.
However, the ICC judges retain the power to reject an application for
confidentiality. Informants should be made aware of this possibility.
Similarly, the ad hoc international criminal tribunals, such as the
International Criminal Tribunal for Rwanda, 201 the International Tribunal for
the Former Yugoslavia, 202 and the Special Court for Sierra Leone, 203 include
ways to provide for confidentiality when a witness’ safety is determined to
be at risk. Protective measures such as hearings behind closed doors, and
the non-disclosure of a witness identity are authorized only if “exceptional
circumstances” can be demonstrated. 204 Many truth or inquiry commissions
can also receive testimony on a confidential basis.205
200
See Rome Statute of the International Criminal Court, art. 54(3)(e), July 17, 1998, 2187 U.N.T.S 90; 37
I.L.M. 1002 (1998), (1998), available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be940a655eb30e16/0/rome_statute_english.pdf and International Criminal Court, Rules of Procedure and
Evidence, rule 82(2) (2005), available at http://www.icccpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Documents/RulesProcedureEvide
nceEng.pdf.
201
International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, rule 53, (Jun. 28, 1995),
available at https://www1.umn.edu/humanrts/africa/RWANDA1.htm.
202
International Tribunal for the Former Yugoslavia since 1991, Rules of Procedure and Evidence, rule 70,
(May 22, 2013), available at
http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev49_en.pdf.
203
Special Court for Sierra Leone, Rules of Procedure and Evidence, rule 69, (2003), available at
http://www.rscsl.org/Documents/RPE.pdf.
204
Colin T. McLaughlin, Victims and Witness Measures of the International Criminal Court: A
Comparative Analysis, 6 THE LAW AND PRACTICE OF INTERNATIONAL TRIBUNALS 189, 192 (2007).
205
Alison Bisset, Rethinking the Powers of the Truth Commissions in light of the ICC Statute, 7 JOURNAL
OF INTERNATIONAL CRIMINAL JUSTICE 963, 969 (2009).
127
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