Protecting Witnesses at the International Criminal Court from Refoulement

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International criminal trials are often contentious in the countries where the alleged crimes took place, and participation in them can place witnesses at risk. Where the risk to a witness is particularly severe, it may not be possible for that person to return home after testifying. In that case, they must be relocated to a safe third country. Many of the witnesses who testify before the International Criminal Court (ICC) can be adequately protected through the court’s witness protection programme. However, the ICC’s witness protection suffers from certain shortfalls that have left some witnesses unwilling to rely on it for their protection. These have turned instead to the to the ICC’s host state, The Netherlands, to claim protection against refoulement. This article argues that many of the shortfalls in the ICC witness protection regime can be addressed by reference to international human rights norms, particularly the prohibition on refoulement, through the interpretative tool in Article 21(3) of the ICC Statute. For the shortfalls that cannot be lessened in this way, seeking protection from The Netherlands may be a viable option. However, the possibility of a non-refoulement claim against The Netherlands, as an alternative to protection by the ICC, does not necessarily solve all of the difficulties facing ICC witnesses.