Intimidation of Defense Witnesses at the International Criminal Tribunals: Commentary and Suggested Legal Remedies

Aloys Simba, a defendant at the International Criminal Tribunal for Rwanda ("ICTR"), has claimed that Rwandan prison guards threatened witnesses who could exculpate him. As a result, he says, the frightened witnesses decided not to testify, thus denying him a complete defense.1 Theoneste Bagosora, also on trial at the ICTR, has made similar claims.2 In both cases, the tribunal ruled that there was insufficient evidence to prove the allegation and never reached the legal merits of the claims.3 The issue is likely to arise again, and since it is novel to both the ICTR and the International Criminal Tribunal for the former Yugoslavia ("ICTY"), it deserves attention. This Comment begins with a short discussion of the legal status and the goals of the tribunals in section I. Section II examines the question of whether intimidation of defense witnesses is a due process violation under international criminal law. The tribunals' statutes and case law do not explicitly state whether witness intimidation is a violation of due process rights, but a plain-meaning reading of the statute, supported by evidence of customary international law, suggests that it is. Section III compares the remedies the tribunals grant for due process violations caused by tribunal actors with the remedies granted for due process violations caused by United Nations ("UN") member states. The case law reveals that the tribunals have a significant tendency to grant greater remedies when tribunal officials are responsible for the violations, which is a worrisome trend. I suggest that if the tribunals wash their hands of state actions and make it more difficult for defendants to prove their innocence, substantive justice will suffer and the tribunals' effectiveness will be eroded. To support this claim, I look at what US courts have done when defense witnesses are intimidated by third-party government actors. There are, of course, myriad differences between the tribunals and US courts, but the comparison is useful within strict boundaries. I suggest that the tribunals ought to grant a remedy that is identical to the remedy they would grant were they responsible for the process violations themselves. Finally, in section IV, I argue that if an intimidated witness's absence could have affected the outcome of the trial, then a suspended trial or retrial is the appropriate remedy. If the witness remains unavailable, however, then the appropriate remedy is a dismissal of the case. To support this position, I argue first that there are normative grounds for excluding the possibility of conviction if a defendant has been deprived of the ability to present an exculpating witness. Any lesser remedy would admit the possibility that a conviction might be secured through illegal action of an interested state. Second, I argue that this remedy provides the most reliable method for assuring future cooperation from the states on which the tribunal depends. Because interfering states are likely to be interested in convictions, they will have an incentive to avoid interfering with defense witnesses if there is a possibility that interference could lead to an acquittal. Still, this remedy may appear severe, so I address some serious challenges to it before concluding in section V.4 I. THE LEGAL STATUS AND GOALS OF THE TRIBUNALS Both the ICTR and the ICTY were established through resolutions passed by the UN Security Council under Chapter VII, Article 39 of the UN Charter. The resolutions adopt statutes defining the crimes to be prosecuted as well as procedural rules for prosecution.5 The statutes also establish the geographic and temporal jurisdiction for the tribunals, the rights of defendants, and the responsibilities of UN member states to the tribunals.6 Specifically, both statutes require that UN member states "shall cooperate with the [tribunals] in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. …