Witness Preparation at the International Criminal Court: Towards a Legal Obligation to Protect Witnesses under Article 68 of the Rome Statute

Pulvirenti, Rossella ORCID: https://orcid.org/0000-0001-5859-7215 (2024) Witness Preparation at the International Criminal Court: Towards a Legal Obligation to Protect Witnesses under Article 68 of the Rome Statute. Journal of International Criminal Justice. ISSN 1478-1387 (In Press)

Accepted Version File not available for download. Available under License In Copyright. Download (554kB)

Abstract

The caselaw on witness preparation at the International Criminal Court (ICC) does not provide a coherent answer to whether it is admissible. Similarly, scholars have examined this practice from different perspectives, but they have not come to a consensus, and no academic study focuses on the link between witness preparation and witnesses’ well-being. After having analysed ICC’s case law on this issue and having identified three different approaches, this paper suggests that witness preparation corresponds to a legal obligation for the ICC under Article 68 of the Rome Statute to protect witnesses’ well-being. Additionally, Article 68 imposes an obligation to ensure witnesses are adequately prepared upon the entire ICC and not only upon its judges. This paper recommends that the ICC should hold a broad consultation on witness preparation with different actors. Finally, given that the practice has the potential to be abused, this paper provides some suggestions on how to balance the most concerning aspects of witness preparation with the right to a fair trial and the same witnesses’ rights.