Part V Fairness and Expeditiousness of ICC Proceedings, 43 Testifying behind Bars—Detained ICC Witnesses and Human Rights Protection
Joris van Wijk, Marjolein Cupido
Edited By: Carsten Stahn
- International criminal law, evidence — Witnesses — Civil and political rights — Detention — Asylum — Crimes against humanity
This Chapter discusses the competing responsibilities of the ICC and the host State in relation to detained witnesses, with a particular focus on asylum applications. As shown by the example of Congolese witnesses, testimony before the Court can lead to conflicting human rights obligations. The Court is obliged to return detained witnesses to the requested state after they have testified. The ICC and the Netherlands need to respect internationally recognized human rights and protect persons from persecution. Attempts to reconcile these competing obligations have resulted in lengthy proceedings before the ICC and Dutch courts. This Chapter examines the problems that arose in this context, and argues that the threat of more asylum applications could have serious implications for the future functioning of international criminal justice. It explores three possible alternative solutions: anticipatory protective measures, video-link testimony, and rogatory commissions, all of which come with their own complications.