Ambassador Van Schaack’s Remarks at UNGA Event Protection of Victims, Witnesses, and “Insider Witnesses” In Atrocity Trials and Investigations

Thank you for inviting me to join you today to discuss this important topic. I’d particularly like to thank the Gravedigger and Dr. Hamid for sharing their stories with us.  As we’ve heard from our speakers, witness protection remains an acute vulnerability in our system of international justice.  We’ve also heard today about the prevalence of transnational threats against survivors, those seeking to testify about their experiences, and courts and other justice institutions. As the world becomes increasingly globalized, this problem is likely to grow and become more complex, especially in cyber space.

We hear a lot these days about the prevalence of open-source information in criminal trials; the reems of digital artifacts emerging from today’s conflict situations; and the increased use of satellite imagery, social media platforms, and everyday cell phones to document abuses.  This evidence is important, but no matter the amount of digital and open-source evidence gathered on the commission of atrocities and abuses in various parts of the world, the testimony of survivors, expert witnesses, and insider witnesses remains critical for ensuring robust accountability for atrocities as well as fair trials for defendants.

And yet, despite their critical role in any system of justice, witnesses nonetheless remain highly vulnerable to reprisals, intimidation, and retaliation—before, during, and after they provide their testimony.  We’ve seen previous cases in domestic and international courts in which witnesses have been under assault and charges for the underlying atrocities have been dismissed as a result of witnesses withdrawing from judicial proceedings following pressure, threats, and intimidation. To provide just one example, disturbing patterns with respect to the intimidation of witnesses and attempts to frustrate accountability efforts appeared early on in proceedings before the Kosovo Specialist Chambers (KSC). Before any indictments had even been made public, leaked files containing the personal details of hundreds of witnesses were delivered to the KLA War Veterans Association in Pristina in September 2020 and released to the public.

In response to this breach of security, the KSC was able to act quickly, relocating witnesses as needed and taking other precautionary measures.  The Specialist Prosecutor’s Office also took action, charging two defendants with obstruction of justice among other charges.  In reviewing the defendants’ actions, the Trial Panel noted, “The message of the accused to these witnesses was:  now that many others know who you are, no one can protect you, because you are a ‘traitor,’ a ‘spy,’ a ‘collaborator’.’”  Stating that the protection of witnesses from intimidation and harm lies at the foundation of any fair and effective system of criminal justice, the Trial Chamber found both the defendants guilty of obstruction, intimidation during criminal proceedings, and violating the secrecy of proceedings.  The Trial Chamber sentenced the defendants to four and a half years of imprisonment, a record in cases involving such charges, demonstrating the severity of these crimes.  That sentence is currently on appeal.

Another compelling example is that of Burma where the need for victim and witness protections is clear, as those who are offering to provide testimony that implicates senior military officials in atrocities are a threat to these powerful individuals.  There have been numerous reports of persons who have deserted from the Tatmadaw military and are willing to provide information to international investigators and justice processes about atrocities committed by the Burmese military both against Rohingya and against peaceful protesters and dissidents in the aftermath of the 2020 military coup. This includes persons seeking to provide evidence to the International Criminal Court (ICC), the Independent Investigative Mechanism for Myanmar (IIMM), The Gambia as it pursues its case against Myanmar under the Genocide Convention before the ICJ, and prosecutors and investigators pursuing universal jurisdiction cases in Argentina and elsewhere. Given the military’s extensive control within Burma, and the number of ongoing disappearances and killings, it is clearly not safe to provide this testimony from inside Burma.  Moreover, given the Burmese military’s reach into neighboring countries, even potential insider witnesses who have escaped Burma may still not be fully safe.  In writing about certain cases that failed before the International Criminal Tribunal or the Former Yugoslavia (ICTY) when witnesses withdrew their testimony following intimidation, former Prosecutor Carla del Ponte noted in her memoir that “[t]he impunity that feeds upon fear was allowed to prevail.”

In this regard, there are at least two categories of witnesses we need to be concerned with. The first involves vulnerable survivor witnesses, who can speak to their own experience as the victims of mass violence and the commission of international crimes against their loved ones.  They may also be able to identify perpetrators and patterns of violence experienced by their community. The second encompasses insider witnesses, including regime defectors, who can shed unique insight into the daily operations of particular organizations, the chain of command and order of battle, where direct or command responsibility lies, and how to interpret coded language or seized documents.

Both categories may require witness protection measures and resettlement options, whether temporary or more permanent.  This includes finding ways to support them—and often their families—while they are undergoing a resettlement process, frequently in communities and cultures that may be very different than their own. However, the second category of vulnerable witnesses presents particular challenges to resettlement as these individuals may be implicated in abuses or have been, at one time, a member of a sanctioned organization.  These elements within their backgrounds might trigger legal bars to immigration or pathways to resettlement that would prevent many states from being able to offer them any form of immigration benefit, including lawful status or humanitarian parole, even when that individual provides valuable testimony before an international or domestic justice mechanism. And yet their testimony may offer the critical linkage evidence, connecting the commission of an international crime to a senior figure within a repressive regime.  Clearly, more thought is needed on how to assist insider witnesses and encourage them to participate in investigations and judicial proceedings without legitimizing impunity.

Enhancing the international system of witness protection will be a key focus for me as Ambassador at Large in the State Department Office of Global Criminal Justice (GCJ).  So far, we have initiated a number of lines of effort in our office. We are conducting comparative research into witness protection systems in the domestic law context around terrorism and organized crime prosecutions to gather best practices, interesting ideas, model laws, and established state practice. We have also been looking at analogous scenarios in which individuals with difficult backgrounds have been resettled to determine how this was accomplished, what inducements might be offered to potential host states, and what social services are necessary to ensure a smooth integration.

We are exploring ways to establish a multilateral system of long-term support for victims and witnesses following their participation in investigations and prosecutions on the understanding that this lack of ongoing sustenance may serve as a deterrent for other victims and witnesses who might come forward to participate in investigations and prosecutions.  In particular, we are looking at ways that states might pool resources and work together diplomatically to ensure that any system of witness protection be sustained during the investigation and trial phases of a judicial process, but also potentially long after witnesses provide their testimony.

We are considering ways to address immigration bars that may prevent insider witnesses from being resettled in third countries. Understandably, many countries have enacted legal bars to travel or immigration of persons implicated in human rights abuses or atrocities. The United States has a number of filters in this regard to prevent perpetrators from entering and enjoying safe haven in the United States.  On some occasions such bars extend to those affiliated with certain groups, regardless of whether the individual participated directly in abuses or atrocities. At the same time, some countries, like my own, have enacted exceptions to certain restrictions to travel in limited circumstances, for example when allowing that person to travel to the U.S. would serve a law enforcement purpose or when that individual’s travel serves a broader national interest.

And finally, I am pleased to announce today that the United States has committed to providing an additional $1 million to the IIMM to support witness and victim protection programs.  This grant recognizes that if we are serious about wanting to ensure justice for those responsible for atrocities in Burma, we must help victims feel safe to tell their stories to investigators and recognize that insider witnesses will be critical to making these cases.  Ensuring the safety and security of witnesses during and after trials will promote others to come forward and testify.  We welcome others to join us to support these efforts, either by funding witness and victim protection programs or offering to assist in relocating victims and witnesses to safe locations.

Today’s event reflects the keen understanding that we need to think creatively, as an international community, about potential solutions, including what might be done collectively at the international level to facilitate cooperation regarding witness protection to safeguard witnesses’ physical and psychological wellbeing and benefit all international justice institutions and mechanisms. We must continue explore options for expanding our toolkit of protections to those testifying in landmark criminal accountability cases.  I look forward to our discussion this morning on how to advance victim-centered support to witnesses in trials in our quest to promote accountability globally.