The following is a recent address by Ambassador David Scheffer, head of the US delegation to the ICC Preparatory Committee negotiations, on the issue of witness protection and international criminal courts.

U.S. Department of State

Address by David J. Scheffer

Ambassador at Large for War Crimes Issues

Fordham University School of Law

New York City, New York

January 28, 1998

"Witness and Victim Protection in International Criminal Courts" I am very pleased to have this opportunity to address such an expert audience on some of the critical issues confronting the operations of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and the negotiations underway at the United Nations to create a permanent international criminal court. The United States has long demonstrated a strong commitment to both tribunals and to establishing an effective and efficient permanent court. The Clinton Administration is determined to strengthen the rule of law globally. The effective investigation and prosecution of serious violations of international humanitarian law is at the core of that effort. The Secretary of State, Madeleine Albright, has repeatedly demonstrated her commitment to the prosecution of war crimes and to the advancement and protection of the rights of women and children.

The challenges confronting international justice today are indeed daunting. The absence of justice is too often the norm rather than the exception in lands where armed conflicts and atrocities proliferate. Combatants are as likely to know as much about the laws of war as they

do about quantum mechanics. The typical victims are women and children -- in the thousands -- raped and macheted for their mere existence. The severity of mass killings in our own time, on the eve of the millennium, reflects how little we know of ourselves, of our neighbors, and of our future. Neither our faith in the impressive march of technology nor our other aspirations for the next century can overshadow the grotesque reality of the massacres that characterize civilization, or the lack thereof, in today's troubled world. National systems of justice are the front-line defense but they have proven problematic. In the ideal world, every war crime, every crime against humanity, and every act of genocide would be prosecuted either in the territory where it was committed or by the state of nationality of the defendant. Yet there are significant cases in which no one is prosecuted by responsible domestic authorities. Let me take a real-time example of the challenge we face today -- Algeria. Algeria is rec

eiving increased attention in the international press for the continuing violence in which as many as 70,000 people may

have been killed since 1992. What receives less attention in the press are reports that women and girls are the victims of sexual violence. Algeria makes us recall the problems investigating sexual violence in Bosnia and Rwanda: first come the reports of people killed in horrible

ways. Only later do investigators dig deeper and find out that women were targeted for rape and murder. What precisely is happening in Algeria is not clear at this point. What is clear is this principle: When crimes of this scale are investigated, investigations into sexual violence must be made an essential part of the investigation. The international community is very concerned about what is going on in Algeria. Most of the reports allege that anti-government terrorists are

responsible. Beyond our own outrage over the massacres in Algeria, we need to see more done to protect women, children and men from these terrorists, consistent with the obligations of all governments to respect the rule of law and human rights. The United States has been

strongly encouraging the Government of Algeria to allow outside observers to view and study the human rights situation there. We supported the recent mission from the European Union to Algeria, but are disappointed at the brevity and limited scope of its inquiry. We also encourage visits under U.N. auspices or by NGO's as well. International attention is essential when crimes of this magnitude occur. This is especially so when crimes of sexual violence occur as widely as they may have in Algeria.

Another real-time example is Rwanda. There, the genocide continues, and women and children are prime targets. Last month, at Secretary Albright's direction, I visited the massacre site at the Mudende refugee camp in north-west Rwanda shortly after the carnage ended. When I reported to the Secretary, I told her that I witnessed evidence of resurgent genocide. Hundreds of women, children, and men had been slaughtered in the most vicious manner. I learned that about 150 Tutsi women may have been kidnapped by the insurgents, and may well be victimized as have been other Rwandan women -- namely, raped for several weeks and then murdered. I visited Gisenyi Hospital where I saw the living horror of genocide in the anguished faces of 267 victims of the genocidal assault. The wounded were overwhelmingly women and children. Many had multiple wounds caused by gunshot, machete, and burns. The lone surgeon in the hospital told me how he literally stuffed the brains of women and children back into their skulls and

stitched up the consequences of malicious machete attacks. Women and babies with compound fractures moaned in agony. One young girl lay paralyzed by a gunshot wound to her lower spine. We all have a duty to respond to this barbarity.

Part of that response is to ensure that the testimony of witnesses to these crimes can be obtained and that the witnesses are protected.

Another part of the response is to care for the victims. It is the particular responsibility of the criminal tribunals and governments to ensure the protection of witnesses. Programs to assist victims with the consequences of these crimes are the particular responsibility of governments and international organizations.

The testimony of witnesses, for the prosecution or for the defense, is vital for the international tribunals, particularly since so much of the evidence is dependent on witness testimony rather than on incriminating or exculpatory documents. This is especially true of crimes of sexual violence.

Are crimes of rape and other serious sexual assault violations of international humanitarian law? The answer is yes, whether one is examining the crime of genocide, crimes against humanity, or war crimes. While there has been and will be debate over precisely how to define crimes of sexual assault within the context of international humanitarian law, the United States will continue to exercise its leadership to ensure that these serious crimes are fully incorporated in the work of the ad hoc tribunals and in the jurisdiction of the permanent international criminal court.

There has been an impressive amount of scholarly study of this subject, and I have come to know in my work some of the scholars and practitioners who have done path-breaking work in this field. One is Professor Rhonda Copelon of City University of New York Law School,

whose work in the permanent court talks has proven instrumental in protecting women's rights. Another is Kelly Dawn Askin, a Visiting Scholar at Notre Dame Law School, whose new book, War Crimes Against Women, is a pathbreaking, comprehensive source of the law. Patricia Viseur-Sellers, until recently the gender adviser to the ad hoc international criminal tribunals, has helped put the issue of sexual assault at the forefront of the tribunals' work. We owe these individuals and many others whom I cannot hope to list tonight our gratitude and thanks.

There is little question that sexual violence is under-reported in the realm of atrocities, or that stories about it come out only after investigators inquire more thoroughly into what happened. This is a lesson we can draw from Rwanda, where the extent of sexual violence became known long after the extent of the killing became known. There is a dichotomy between recognizing that sexual violence during warfare is often widespread and our inclination not to admit that it happens as often as it does. But there are emerging norms, one being that there should be less stigma on victims of sexual violence, and another that investigators should inquire more than they do into whether sexual violence occurred.

There is other progress. The number of indictees of the Yugoslav Tribunal who have been charged with rape or sexual assault under 10 of the tribunal indictments now numbers 26. Forty percent of the commanders who have been indicted have been charged with rape or sexual assault. Unfortunately, most of those charged with crimes of sexual assault are not yet in custody. This has caused understandable distress among the victims of rape in Bosnia. So let me make this point very clearly. The United States is totally committed to strengthening the capabilities of the Yugoslav Tribunal and to pressuring the regional authorities in order to accomplish the arrest or voluntary surrender and subsequent prosecution of the indictees. Those indictees who remain at large, including Radovan Karadzic and Ratko Mladic, must realize that their day before the Yugoslav Tribunal will come; that there are no deals to cut; that there is no way they can avoid a fair trial. Karadzic's pathetic efforts to seek exoneration throug

h publication of hand-picked documents and to avoid a trial in The Hague elicit no sympathy from this quarter. The smartest move by Karadzic and Mladic would be to voluntarily surrender to Tribunal officials. They would live their natural lives, since there is no death penalty at the Tribunal, and they can argue their innocence before the world rather than pursue the cowardly isolation of men who appear to fear their past as much as they do their future.

There is no statute of limitations on these crimes, and the work of the Yugoslav Tribunal and the Rwanda Tribunal will continue for many years. Of course we are impatient for justice to be rendered, and we hear the criticism of those, particularly the victims, who understandably are

frustrated with the pace of apprehensions. But the fact that certain major indictees are not yet in custody should lead no one to assume that we are complacent. Nor should anyone underestimate how seriously we view Karadzic's corrosive influence on the Dayton peace process. The President's commitment to maintain a military presence in Bosnia should signal to all alleged war criminals that they cannot beat the clock by waiting for July and the end of the deployment of the Stabilization Force (SFOR). Acting within the mandate approved by the North Atlantic Council, SFOR has demonstrated on three occasions since last July that

it has the will to apprehend indictees. The latest apprehension, in the American sector, of Goran Jelisic two weeks ago demonstrated our resolve to bring alleged perpetrators of genocide to justice. The Rwanda Tribunal has two indictments charging rape or sexual assault

against two individuals who are in custodyy. Of the 32 publicly indicte individuals of the Rwanda Tribunal, 23 are now in custody. We fully expect that the slow start that the Rwanda Tribunal has had in delivering indictments on rape or sexual assault will be improved upon in the months ahead. It is important to note that at the Yugoslav Tribunal, work is underway to amend some of the existing indictments to include sexual assault charges. Also, the many indictees under the Foca and Keraterm indictments have not yet surrendered or been apprehended, but when they do appear those trials will be major prosecutions of rape and sexual assault. The indictee recently captured in Vitez by SFOR, Anto Furundzija, is charged with rape as a violation of the laws or customs of war under Article 3 of the Yugoslav Tribunal statute. Significantly, the indictment notes that Furundzija was a commander, which can set an important precedent for the Yugoslav Tribunal in prosecuting rape and sexual assault.

Some of the witness protection issues for victims of sexual violence are essentially the same as for victims of other crimes. We might look at this problem in three stages: First, what needs to be done before a witness actually testifies? The tactics are important. For example, it is important for the criminal tribunal to have unmarked cars to travel to meet witnesses. Safe

houses, particularly in Bosnia, are essential. Investigators should arrange to meet witnesses in places where it will not be apparent to neighbors that they are cooperating -- a requirement in both Bosnia and Rwanda. Also, the timing of the interview is important. Interviews might be arranged when the witness could just be going into town, or going to the market, or on a personal errand. NGO's also can help with these requirements, but they must be very discreet. Public advocacy NGO's may find it hard to do this because they depend on publicizing their efforts to be successful.

An important factor that has to be considered in any decision to provide protection is whether the witness in fact is known to be a witness beyond the secrecy of the tribunal. We need to recognize that until a witness' identity is exposed, the tribunals may not need to provide the level of protection that will be required later in the process. Second, witness protection during the testimony phase is critical. At this juncture the Victims and Witnesses Units of both ad hoc tribunals are important. They must be adequately staffed and well coordinated with the investigators in the Office of the Prosecutor. Investigators are the first line of contact and frequently work more closely with witnesses than does the Victim and Witness Unit of the tribunal. The Victims and Witnesses Unit arranges safe transportation of witnesses from home to the tribunal including accompaniment of secure or vulnerable witnesses where necessary. It liaises with states for exit and entry permits, travel documents, safe conduct agr

eements and visas. It liaises with host governments for protection, safe accommodation and transportation for witnesses during trials. The Unit liaises with states for pre- and post-trial protection and support services. And it liaises with states for temporary and permanent relocation of witnesses. Rule 96 of the Rules of Procedure and Evidence of the Yugoslav and Rwanda Tribunals recognizes the importance of limiting the defense of consent in challenging victim testimony in connection with cases of sexual assault which fall within the jurisdiction of the tribunals. The United States Government understands the critical importance of this rule and we believe its tenets should be reflected in the rules of the permanent international criminal court. There are a lot of witnesses required for the cases being litigated by the to ad hoc tribunals, and the same can surely be expected for the permanent international criminal court. The Yugoslav Tribunal used 200 witnesses in 1997 and expects to use at least 340

in 1998. The Rwanda Tribunal used 109 witnesses in 1997 and expects around 330 this year.

In 1997 the number of witnesses with additional protective measures totaled 49 for the Yugoslav Tribunal and 51 for the Rwanda Tribunal. In 1998 those numbers are expected to jump to 98 and 257, respectively. The number of relocation requests at the Yugoslav Tribunal in 1997 was one and four more are expected this year. At the Rwanda Tribunal, the number of relocation requests in 1997 was five and is expected to increase to 20 such requests this year. Witnesses with additional support needs numbered 40 last year and should increase to 80 this year at the Yugoslav Tribunal, and numbered 31 last year and should increase to 33 this year at the Rwanda Tribunal. The Rwanda Tribunal had two safe houses last year and will need three in 1998. In the past, the Victims and Witnesses Units of both Tribunals have relied to an inordinate degree on voluntary contributions to support the critical work of protection. The consequence has been insufficient protection for witnesses and thus degraded capabilities to prosec

ute and defend indictees, meaning that the conduct of fair trials can be jeopardized. The funding for protection of witnesses must be strengthened. We were pleased to see that the 1998 regular budget requests of both tribunals provide regular budget financing for witness protection and permanent direct hire staffing for it. Much more will need to be done, however, to build a truly effective Victims and Witnesses Unit in each tribunal. Voluntary contributions will continue to be required, and we will work hard to do our part. The third stage of witness protection occurs after testimony is delivered. Perhaps the most significant issue is whether local police will be supportive and protect the witnesses afterwards. Where local police may be hostile, it is important to keep the fact of a witness' testimony secret. That is particularly difficult in the highest-profile cases. Also, states need to take up witness protection as a national issue, both for international and national trials. This is possible i

n places like Rwanda. Interestingly, some witnesses who testify anonymously will be willing to talk publicly afterwards.

It is in this third stage of witness protection where progress is particularly lacking. That is why, for example, in Bosnia the United States is so focused on full implementation of the Dayton Peace Accords, including proper training, screening, and upgrading of local police forces so that they can responsibly begin to assume some of these duties.

We applaud the commitment of the United Kingdom recently to assist the Yugoslav Tribunal with witness relocation. I intend to explore thoroughly U.S. capabilities for witness relocation to assist both the Yugoslav and Rwanda Tribunals.

In the U.N. talks to establish a permanent international criminal court, the United States recognizes how important it will be for the permanent court to understand the significance of witness protection issues. As in national criminal prosecutions, effective witness protection on

A state's territory normally would require state consent and the cooperation of local police. Lack of witness protection can be an effective brake on the ability of the ICC prosecutor to prosecute, and it would be exceedingly difficult to overcome a state's non-consent or unwillingness to properly protect witnesses on its territory. We look forward to further negotiations on relevant articles of the draft statute for the ICC which pertain to witness protection. The United States believes that the Victims and Witnesses Unit of the ICC should be located within the Office of the Prosecutor. We reach this position having observed the performance of the Victims and Witnesses Units of the ad hoc tribunals, where they are located in the Registry. It has not worked to our satisfaction. Witness protection is not a

bureaucratic function; it is very serious business that directly involves the Prosecutor, who needs the trust of witnesses and who has a very direct stake in protecting them. Our federal court system places witness protection under the authority of the Department of Justice, not

the Administrator of the U.S. Courts. There may be some need to assure the court's authority to ensure protection of defense witnesses. Realistically, we know that the largest number of witnesses needing protection will be testifying for the prosecution. We certainly have no objection to the court having inherent power in appropriate cases to assist the defense to safeguard their witnesses. Additionally, though, we cannot slip into the presumption that the court itself will become a long-term rehabilitation center for witnesses or victims. The court will not be able to afford it, and such responsibilities are far outside the range of judicial functions. While certain types of compensation should be available to the court, we need to be very careful not to overreach either the judicial function of the court, its resources, or its ability to compel payment by convicted individuals. That being said, we are fully cognizant of the need to address the critical needs of victims and witnesses and believe that me

chanisms outside of the permanent court should be explored for that purpose.

One small but important example: My own visit to Gisenyi Hospital in Rwanda last month impressed upon me the critical need for rapid medical response in response to atrocities. Another example is how to determine

state responsibility for reparations to living victims of atrocities which perhaps have been litigated before the permanent court. Finally, we need to study carefully provisions on witness protection that impose unequivocal obligations on States Parties to comply with requests of the Court. The domestic laws and procedures of national systems, including our own, impose certain constraints on how far authorities can go in protecting certain individuals. Further, the information provided by the Court to a requested State to protect a witness or victim may not be sufficient. We need to examine the Court's responsibility to provide enough information to ensure adequate protection by domestic authorities, as well as domestic limitations on the confidentiality of such information in order to facilitate such protection.

These are tough issues, but witness security and protection are central to proper enforcement of international criminal law today. The United States Government, with your expert assistance, will remain at the forefront in dealing with them.

Thank you.