Before: Judge McDonald, Presiding
Judge Stephen
Judge Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision: 10 August 1995
PROSECUTOR
v.
DUSKO TADIC A/K/A "DULE"
_____________________________________________________________
DECISION ON THE PROSECUTOR'S MOTION REQUESTING
PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES
____________________________________________________________
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Brenda Hollis
Mr. Alan Tieger
Mr. William Fenrick
Mr. Michael Keegan
Counsel for the Accused:
Mr. Michail Wladimiroff
Mr. Milan Vujin
Mr. Krstan Simic
DECISION
Pending before the Trial Chamber is the Motion Requesting Protective Measures for
Victims and Witnesses filed by the Prosecutor on 18 May 1995, which contains thirteen
separate prayers for relief in respect of seven alleged victims or witnesses who are
referred to by the pseudonyms A, F, G, H, I, J and K and one prayer concerning all
witnesses who may testify in this case. The Defence has filed a Response objecting in part
and agreeing in part to the protective measures sought. Two briefs have been submitted by amicus
curiae, one by Professor Christine Chinkin, Dean and Professor of International Law,
University of Southampton, United Kingdom ("Brief of Professor Chinkin") and a
joint brief filed by Rhonda Copelon, Felice Gaer, Jennifer M. Green and Sara Hossain, all
of the United States of America, on behalf of the Jacob Blaustein Institute for the
Advancement of Human Rights of the American Jewish Committee, New York; the Center for
Constitutional Rights, New York; the International Women's Human Rights Law Clinic of the
City University of New York, New York; and the Women Refugees Project of the Harvard
Immigration and Refugee Program and Cambridge and Somerville Legal Services, both of
Cambridge, Massachusetts ("the Joint U.S. Brief").
At the request of the Prosecutor, which was not opposed by the Defence, the motion was
heard in camera on 21 June 1995. Since that date, additional confidential filings
giving details of prior media contact, if any, with the pseudonymed witnesses have been
made by both parties pursuant to an Order of this Trial Chamber of 23 June 1995. In that
same filing, the Prosecutor has amended two of his prayers for relief. The Prosecutor has
also withdrawn the request for relief in respect of the witness pseudonymed A and now
seeks only delayed disclosure to the accused of the identity of the witness pseudonymed F,
not non-disclosure, based on evidentiary issues surrounding the testimony of that witness.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments
of the parties, and the written submissions of the amicus curiae,
HEREBY ISSUES ITS DECISION
DISCUSSION
I. Factual Background
1. Dus ko Tadic ("Tadic") is the first accused to appear before the
International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 ("the International Tribunal"). Tadic was surrendered to the
jurisdiction of the International Tribunal by the Federal Republic of Germany in April
1995, pursuant to an indictment and warrants of arrest issued by the Tribunal in February
1995. Tadic made his initial appearance before this Trial Chamber on 26 April 1995 when he
was formally charged and pleaded not guilty to all charges against him.
2. Tadic is charged with crimes arising out of six separate incidents which are alleged
to have occurred at the Omarska camp in the Opstina of Prijedor between June and August
1992, an incident arising out of the surrender of the Kozarac area in May 1992 and a
further set of charges in connection with events in the villages of Jaskici and Sivci in
June 1992. The charges involve the commission of serious violations of international
humanitarian law including, inter alia, forcible sexual intercourse or rape, wilful
killing or murder, wilfully causing grave suffering or serious injury, torture, cruel
treatment and the commission of inhumane acts and are alleged to constitute grave breaches
of the Geneva Conventions of 12 August 1949 as recognized by Article 2 of the Statute of
the International Tribunal ("the Statute"), violations of the laws or customs of
war as recognized by Article 3 of the Statute and crimes against humanity as recognized by
Article 5 of the Statute.
II. The Pleadings
3. The Prosecutor seeks fourteen separate protective measures for the protection of
alleged victims and witnesses, as follows (after amendment of Prayers 3 and 11, and
withdrawal of the request in respect of the witness pseudonymed A):
Prayer (1) : that the names, addresses, whereabouts and other identifying data
concerning persons given pseudonyms F, G, H and I, being victims and/or witnesses of the
crimes alleged in Charges 4.1 to 4.4, 5.1 and 5.29 to 5.34 of the indictment against the
accused shall not be disclosed to the public or to the media;
Prayer (2): that the names, addresses, whereabouts and other identifying data
concerning persons given pseudonyms J and K, witnesses who will testify concerning Charge
11 of the indictment against the accused shall not be disclosed to the public or to the
media;
Prayer (3): that all hearings to litigate the issue of protective measures for
pseudonymed witnesses shall be in closed session;
Prayer (4): that the names, addresses, whereabouts and other identifying
information concerning F, G, H, I, J and K shall be sealed and not included in any of the
public records of the International Tribunal;
Prayer (5): that, to the extent the names of, or other identifying data
concerning, any of these victims and witnesses are contained in existing public documents
of the International Tribunal, those names and other identifying data shall be expunged
from those documents;
Prayer (6): that documents of the International Tribunal identifying these
witnesses shall not be disclosed to the public or the media;
Prayer (7): that testimony of these witnesses shall be given by one-way closed
circuit television;
Prayer (8): that testimony of these witnesses may be given using voice and image
altering devices or by not transmitting the image to the accused and the defence;
Prayer (9): that the testimony of these witnesses be heard in closed session;
Prayer (10): that the pseudonyms F, G, H, I, J and K be used whenever referring
to these witnesses in proceedings before the International Tribunal and in discussions
among parties to the trial;
Prayer (11): In the alternative: (a) that the prosecution may withhold from the
defence and the accused the names of, and other identifying data concerning witnesses G,
H, I, J and K. The prosecution shall disclose to the defence and the accused the name and
complete statement of witness F in sufficient time to allow the defence to prepare for
trial, but no earlier that one month in advance of the firm trial date. The Prosecution
may redact from witness F's statement witness F's current address and whereabouts, and
information disclosing the present address and whereabouts of the witness' relatives.
or (b) that the prosecution shall disclose to the defence and the accused the names and
the complete statements of witnesses F, G, H, I, J and K in sufficient time to allow the
defence to prepare for trial, but no earlier than one month in advance of the firm trial
date. The prosecution may redact from the statements the witnesses' current addresses and
whereabouts and information disclosing the present addresses and whereabouts of the
witnesses' relatives;
Prayer (12): that the accused, the defence attorneys and their representatives
who are acting pursuant to their instructions or requests shall not disclose the names of
these victims and witnesses or other identifying data concerning these witnesses to the
public or to the media, except to the limited extent such disclosure to members of the
public is necessary to adequately investigate the witnesses. Further order that such
necessary disclosure be done in such a way as to minimize the risk of the victims' and
witnesses' names being divulged to the public at large or to the media;
Prayer (13): that the accused, the defence counsel and their representatives who
are acting pursuant to their instructions or requests shall notify the Office of the
Prosecutor of any requested contact with prosecution witnesses or the relatives of such
witnesses and that the Office of the Prosecutor shall make arrangements for such contact;
Prayer (14): that the public and the media shall not photograph, video record or
sketch witnesses who are victims of the conflict in the former Yugoslavia when these
witnesses are entering the International Tribunal building, exiting from the International
Tribunal building or while they are in the International Tribunal building.
4. The protective measures sought fall into five categories: those seeking
confidentiality, whereby the victims and witnesses would not be identified to the public
and the media (Prayers 1 - 6, 9, 10 and 12); those seeking protection from
retraumatization by avoiding confrontation with the accused (Prayer 7); those seeking
anonymity, whereby the victims and witnesses would not be identified to the accused and
his counsel (Prayers 8 and 11 (a)); miscellaneous measures for certain victims and
witnesses (Prayers 11 (b) and 13); and, finally, Prayer 14 seeks general measures for all
victims and witnesses who may testify before the International Tribunal in the future. The
Prosecutor has served the Defence with redacted statements of the pseudonymed witnesses.
5. The Prosecutor contends that the protective measures sought are necessary to allay
the fears of the victims and witnesses that they or members of their family will suffer
retribution, including death or physical injury, if they testify before the International
Tribunal and that unless they receive the protection sought, the witnesses will not
testify. The measures are also said to be necessary to protect the privacy of the victims
and witnesses. The Prosecutor asserts that the measures sought are authorized by the
Statute and the Rules of Procedure and Evidence adopted by the International Tribunal
("the Rules").
6. The Defence agrees to the granting of the measures requested in Prayers 1, 3 (as
amended), 4, 5, 6, 9, 10, 12, 13 and 14. However, the Defence seeks dismissal of Prayers
2, 7, 8 and 11 (as amended), and contends that these measures would deny the accused his
right to a public hearing and would infringe his right to a fair trial.
7. The Defence argues that the right to a fair trial, as protected by Article 20 of the
Statute, evokes certain minimum standards which, as the Statute is silent on the point,
can only be understood by reference to decisions in other jurisdictions, in particular,
the European Court of Human Rights. One of these minimum standards is the right for the
accused to examine, or have examined, the witness under the same conditions as witnesses
against him. The Defence contends that this means that the accused must be in a position
to understand what the witness is saying and be able to assess and challenge that
evidence. It is argued that this can only be done if the accused is not limited as to the
questions he puts and is able properly to prepare for the examination of the witness.
Therefore the Defence asserts that the identity of the witness must be disclosed to the
accused in advance of the trial.
8. In its subsequent filings, the Defence has stated that the release of the nicknames
used to refer to the pseudonymed witnesses while in the Omarska camp will be sufficient in
respect of witnesses F, G, H and I and that all it requires in respect of witnesses J and
K is their address at the time of the alleged offence. The Defence asserts that it has no
interest in knowing the present whereabouts of any of the pseudonymed witnesses.
9. The Defence further argues that there are only very limited circumstances in which
the identity of the witness can be withheld from the accused and still permit the accused
a fair trial, with the proper exercise of the right to examine the witnesses against him.
Those circumstances arise in the situation where the witness is not a victim of the
alleged offence but a fortuitous bystander and there is no other relationship between the
witness and the accused. The actual identity of the witness is then irrelevant.
10. The briefs submitted by the two amicus curiae generally support the position
of the Prosecutor. The Brief of Professor Chinkin recognizes the right of the accused to a
fair trial and addresses the question of how to balance this right with the rights of
private individuals, the public interest in the proper administration of justice and the
interests of the international community in seeing those accused of violations of
international humanitarian law brought to trial. Professor Chinkin addresses both
non-disclosure to the public (confidentiality) and to the accused (anonymity), and
discusses how non-disclosure to the accused can be made compatible with the right to a
fair trial and is justified by policy considerations in sexual assault cases.
11. The Joint U.S. Brief also addresses these issues and supports most of the relief
sought by the Prosecutor, although in some cases the Trial Chamber is invited to extend
its protection even further. The brief also urges the International Tribunal to establish
a process whereby victims and witnesses can be consulted about their concerns and the
dangers they face, especially in view of the ongoing conflict, and advised as to the
protection available, and thus give fully-informed consent.
III. The Powers of the International Tribunal
12. The International Tribunal was established by the Security Council in the first
half of 1993 as a measure to maintain or restore international peace and security pursuant
to Chapter VII of the Charter of the United Nations. Resolution 827, containing the
Statute of the International Tribunal, was adopted in May 1993, giving the International
Tribunal jurisdiction "to prosecute persons responsible for serious violations of
international humanitarian law committed in the territory of the former Yugoslavia since
1991", in accordance with the provisions of the Statute.
13. The power of the Trial Chamber to grant measures for the protection of victims and
witnesses arises from the provisions of the Statute and of the Rules. Article 20 of the
Statute provides in paragraph (1) that the Trial Chamber shall ensure that a trial is fair
and expeditious, with "due regard for the protection of victims and witnesses".
Article 22 of the Statute, entitled Protection of victims and witnesses, reads as
follows:
14. Measures for the protection of victims and witnesses are provided for in a number
of places in the Rules, in particular, in Rules 69, 75, 79 and 89. The main provision is
in Rule 75, as amended in June 1995. This Rule, Measures for the Protection of Victims
and Witnesses, reads as follows:
(B) A Chamber may hold an in camera proceeding to determine whether to order:
(i) measures to prevent disclosure to the public or the media of the identity or
whereabouts of a victim or a witness, or of persons related to or associated with him by
such means as:
(b) non-disclosure to the public of any records identifying the victim;
(c) giving of testimony through image- or voice- altering devices or closed circuit television; and
(d) assignment of a pseudonym;
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measures to facilitate the testimony of vulnerable victims and
witnesses, such as one-way closed circuit television.
(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.
15. Rule 69, Protection of Victims and Witnesses, as amended in June 1995,
provides for protective measures at the pre-trial stage as follows:
(B) In the determination of protective measures for victims and witnesses, the Trial
Chamber may consult the Victims and Witnesses Unit.
(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.
16. Rule 79, Closed Sessions, provides in Sub-rule (A) that:
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.
Finally, Rule 89, entitled General Provisions, provides guidance to the Trial
Chamber as to the rules of evidence it should apply, in particular, in Sub-rules (B), (C)
and (D):
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of
evidence which will best favour a fair determination of the matter before it and are
consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed
by the need to ensure a fair trial.
(E) . . .
IV. Sources of law that the International Tribunal should apply
in interpreting its Rules and Statute
17. A fundamental issue raised by this motion is whether, in interpreting and applying
the Statute and Rules of the International Tribunal, the Trial Chamber is bound by
interpretations of other international judicial bodies or whether it is at liberty to
adapt those rulings to its own context. The Defence argues that the case law of other
international judicial bodies interpreting the right of an accused to a fair trial
establishes the minimum standard which must be preserved in all judicial proceedings,
including those of the International Tribunal. In contrast, the Prosecutor argues that
while the case law of other international bodies is relevant for interpreting this right,
its application must be tailored to the unique requirements mandated by the Statute of the
International Tribunal.
18. Although the Statute of the International Tribunal is a sui generis legal
instrument and not a treaty, in interpreting its provisions and the drafters' conception
of the applicability of the jurisprudence of other courts, the rules of treaty
interpretation contained in the Vienna Convention on the Law of Treaties appear relevant.
Article 31 of the Vienna Convention states that a treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose. (Vienna Convention on the Law of
Treaties, U.N. Doc. A/CONF. 39/27.) The object and purpose of the International Tribunal
is evident in the Security Council resolutions establishing the International Tribunal and
has been described as threefold: to do justice, to deter further crimes and to contribute
to the restoration and maintenance of peace. (First Annual Report of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991, U.N. Doc. A/49/150 (1994) at para. 11 ("Annual Report").) In the case of
the International Tribunal, the context of the Statute is indicated by the Report of the
Secretary-General of 3 May 1993 (U.N. DOC S/25704), which contained a draft statute
adopted by the Security Council without amendment.
19. The Report of the Secretary-General gives little guidance regarding the applicable
sources of law in construing and applying the Statute and Rules of the International
Tribunal. Although the Report of the Secretary-General states that many of the provisions
in the Statute are formulations based upon provisions found in existing international
instruments, it does not indicate the relevance of the interpretation given to these
provisions by other international judicial bodies. (1d. para. 17.) This lack of
guidance is particularly troubling because of the unique character of the International
Tribunal. It is the first international criminal tribunal ever to be established by the
United Nations. Its only recent predecessors, the International Military Tribunals at
Nuremberg and Tokyo, were created in very different circumstances and were based on moral
and juridical principles of a fundamentally different nature. (Id. para. 3.) In
addition, the Nuremberg and Tokyo Tribunals were multinational but not international in
the strict sense as only the victors were represented. (Id. para. 10.) By contrast,
the International Tribunal is not the organ of a group of States; it is an organ of the
whole international community. (Id. para. 10.)
20. As a body unique in international law, the International Tribunal has little
precedent to guide it. The international criminal tribunals at Nuremberg and Tokyo both
had only rudimentary rules of procedure. The rules of procedure at Nuremberg barely
covered three and a half pages, with a total of 11 rules, and all procedural problems were
resolved by individual decisions of the Tribunal. At Tokyo there were nine rules of
procedure contained in its Charter and, again, all other matters were left to the
case-by-case ruling of the Tribunal. (Id. para. 54.) Both tribunals guaranteed
certain minimum rights to the accused to ensure a fair trial. These rights included: (1)
the right to be furnished with the indictment in a language which the defendant
understands; (2) the right to a translation of the proceedings in a language which the
defendant understands; (3) the right to assistance of counsel; and (4) the right to
present evidence and to cross-examine witnesses called by the prosecution1.
1 Art. 24(g) of the Charter of the International Military
Tribunal at Nuremberg provides that "[t]he Prosecution and the Defense shall
interrogate and may cross-examine any witness and any defendant who gives testimony,"
while art. 9(d) of the Charter of the International Military Tribunal for the Far East
states that "[a]n accused shall have the right, through himself or through his
counsel (but not through both), to conduct his defense, including the right to examine any
witness, subject to such reasonable restrictions as the Tribunal may determine."
21. Although the Judges of the International Tribunal looked to the Nuremberg and Tokyo
tribunals when drafting the Rules, these tribunals provided only limited guidance. In
addition to the lack of detail, the Judges were conscious of the need to avoid some of the
flaws noted in the Nuremberg and Tokyo proceedings. (Id. para. 71.) The Nuremberg
and Tokyo trials have been characterized as "victor's justice" because only the
vanquished were charged with violations of international humanitarian law and the
defendants were prosecuted and punished for crimes expressly defined in an instrument
adopted by the victors at the conclusion of the war. (See Röling and Cassese, The
Tokyo Trial and Beyond 50-55 (1993).) Therefore, the International Tribunal is
distinct from its closest precedents.
22. Another unique characteristic of the International Tribunal is its utilization of
both common law and civil law aspects. Although the Statute adopts a largely common law
approach to its proceedings, it deviates in several respects from the purely adversarial
model. (Annual Report, supra, para. 71.) For example, there are no technical rules
for the admission of evidence and the Judges are solely responsible for weighing the
probative value of evidence. Secondly, a Chamber may order the production of additional or
new evidence proprio motu. Thirdly, there is no plea-bargaining. (Id. paras.
72-74.) As such, the International Tribunal constitutes an innovative amalgam of these two
systems.
23. A final indication of the uniqueness of the International Tribunal is that, as an
ad hoc institution, the International Tribunal was able to mold its Rules and procedures
to fit the task at hand. (Id. para. 75.) The International Tribunal therefore
decided, when preparing its Rules, to take into account the most conspicuous aspects of
the armed conflict in the former Yugoslavia. Among these is the fact that the abuses
perpetuated in the region have spread terror and anguish among the civilian population.
The Judges feared that many victims and witnesses of atrocities would be deterred from
testifying about those crimes or would be concerned about the possible negative
consequences that their testimony could have for themselves or their relatives. This was
particularly troubling given that, unlike Nuremberg, prosecutions would, to a considerable
degree, be dependent on eyewitness testimony. (Virginia Morris and Michael P. Scharf, An
Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia at
242.)
24. In drafting the Rules, therefore, the Judges of the International Tribunal
endeavored to incorporate rules that addressed issues of particular concern, such as the
protection of victims and witnesses, thus discharging the mandate of Article 22 of the
Statute. (Annual Report, supra, para. 75.) Provisions are made for the submission
of evidence by way of deposition, i.e., testimony given by a witness who is unable or
unwilling to testify in open court (Rule 71). Another protection is that arrangements may
be made for the identity of witnesses who may be at risk not to be disclosed to the
accused until such time as the witness is brought under the protection of the
International Tribunal (Rule 69). Additionally, appropriate measures for the privacy and
protection of victims and witnesses may be ordered including, but not limited to,
protection from public identification by a variety of methods (Rule 75). Also relevant is
the establishment of a Victims and Witnesses Unit within the Registry to provide
counselling and recommend protective measures (Rule 34). Additionally, the Judges
recognized that many victims of the conflict in the former Yugoslavia are women and have
therefore placed special emphasis on crimes against women in the Rules. (Annual Report, supra,
para. 82.) The Rules make special provisions as to the standard of evidence and matters of
credibility of the witness which may be raised by the defence in cases of sexual assault
(Rule 96). In particular, no corroboration of a victim's testimony is required and the
victim's previous sexual conduct is inadmissible. Additionally, if the defence of consent
is raised, the Trial Chamber may consider factors that vitiate consent, including physical
violence and moral and psychological constraints.
25. In drafting the Statute and the Rules every attempt was made to comply with
internationally recognized standards of fundamental human rights. The Report of the
Secretary-General emphasizes the importance of the International Tribunal in fully
respecting such standards. (Report of the Secretary-General, supra, para. 106.) The
drafters of the Report recognized that ensuring that the proceedings before the
International Tribunal were conducted in accordance with international standards of fair
trial and due process was important not only to ensure respect for the individual rights
of the accused, but also to ensure the legitimacy of the proceedings and to set a standard
for proceedings before other ad hoc tribunals or a permanent international criminal court
of the future. (See Morris and Scharf, supra, at 175.) In response to these
concerns, the drafters adopted a liberal approach in procedural matters. Article 21 of the
Statute provides minimum judicial guarantees to which all defendants are entitled and
reflects the internationally recognized standard of due process set forth in Article 14 of
the International Covenant on Civil and Political Rights ("ICCPR"). In fact, the
Statute provides greater rights than the ICCPR by extending judicial guarantees to the
pre-trial stage of the investigation.
26. Although Article 14 of the ICCPR was the source for Article 21 of the Statute, the
terms of that provision must be interpreted within the context of the "object and
purpose" and unique characteristics of the Statute. Among those unique considerations
is the affirmative obligation to protect victims and witnesses. Article 22 provides that
such measures shall include the protection of the victim's identity. Article 20 (1) of the
Statute requires: "full respect for the rights of the accused and due regard for the
protection of victims and witnesses." Further, Article 21 states that the right of an
accused to a fair and public hearing is subject to Article 22. Pursuant to those mandates,
Rules were promulgated which relate to the protection of victims and witnesses, as
referred to above.
27. This affirmative obligation to provide protection to victims and witnesses must be
considered when interpreting the provisions of the Statute and Rules of the International
Tribunal. In this regard it is also relevant that the International Tribunal is operating
in the midst of a continuing conflict and is without a police force or witness protection
program to provide protection for victims and witnesses. These considerations are unique:
neither Article 14 of the ICCPR nor Article 6 of the European Convention of Human Rights
("ECHR"), which concerns the right to a fair trial, list the protection of
victims and witnesses as one of its primary considerations. As such, the interpretation
given by other judicial bodies to Article 14 of the ICCPR and Article 6 of the ECHR is
only of limited relevance in applying the provisions of the Statute and Rules of the
International Tribunal, as these bodies interpret their provisions in the context of their
legal framework, which do not contain the same considerations. In interpreting the
provisions which are applicable to the International Tribunal and determining where the
balance lies between the accused's right to a fair and public trial and the protection of
victims and witnesses, the Judges of the International Tribunal must do so within the
context of its own unique legal framework.
28. The fact that the International Tribunal must interpret its provisions within its
own legal context and not rely in its application on interpretations made by other
judicial bodies is evident in the different circumstances in which the provisions apply.
The interpretations of Article 6 of the ECHR by the European Court of Human Rights are
meant to apply to ordinary criminal and, for Article 6 (1), civil adjudications. By
contrast, the International Tribunal is adjudicating crimes which are considered so
horrific as to warrant universal jurisdiction. The International Tribunal is, in certain
respects, comparable to a military tribunal, which often has limited rights of due process
and more lenient rules of evidence. This is evident in the case law of those countries
which have conducted their own war crimes trials. For example, much reliance has been
placed during war crimes trials on affidavits, i.e., signed statements by a witness made
before trial. Defence counsel have often objected to the use of such evidence, mainly on
the ground that, unlike a witness appearing in court, affidavits cannot be cross-examined.
However, it has been noted that: "there can be no doubt as to their admissibility
under the laws governing at least most of the countries which have conducted trials of
offences under international criminal law." (Law Reports of Trials of War
Criminals, vol. XV, 198 (1949).) A further example of the more elastic rules of
evidence permissible before those courts which have tried war criminals is found in the
greater frequency with which hearsay evidence is admitted, when compared to proceedings
before most courts dealing with offences purely under national law. (Id. at 199.)
29. In addition, the rights for the accused provided by the International Tribunal
clearly exceed those contained in Article 105 of the 1949 Geneva Convention III Relative
to the Treatment of Prisoners of War, which provides for the rights of a prisoner of war
in criminal proceedings. Article 105 includes only the right to counsel, the right to be
informed of the charges, and the rights of the accused to receive relevant documents, to
have adequate time and facilities to prepare the defence, to have access to an
interpreter, to confer privately with counsel, and to call witnesses.
30. As such, the Trial Chamber agrees with the Prosecutor that the International Tribunal must interpret its provisions within its own context and determine where the balance lies between the accused's right to a fair and public trial and the protection of victims and witnesses within its unique legal framework. While the jurisprudence of other international judicial bodies is relevant when examining the meaning of concepts such as "fair trial", whether or not the proper balance is met depends on the context of the legal system in which the concepts are being applied.
V. Confidentiality
A. Public Hearing
31. Several of the Prosecutor's requests have direct implications for the accused's
right to a public hearing. Although in this case the Defence has agreed to these requests
for most witnesses, Article 20 of the Statute obligates the Trial Chamber to ensure that
the trial is fair and conducted in accordance with the Rules. The Trial Chamber is
cognizant that, in many respects, it is establishing legal precedents in uncharted waters.
The Prosecutor has advised that he may seek protective measures for other witnesses and
the Defence, if it chooses, may also apply for protection. Therefore, it is important that
the Trial Chamber's interpretation and application of the Statute and Rules be explained
with some specificity.
32. The benefits of a public hearing are well known. The principal advantage of press
and public access is that it helps to ensure that a trial is fair. As the European Court
of Human Rights noted: "By rendering the administration of justice visible, publicity
contributes to the achievement of the aim of . . . a fair trial, the guarantee of which is
one of the fundamental principles of any democratic society . . ." (Sutter v.
Switzerland, decision of 22 February 1984, Series A, no. 74, para. 26.) In addition,
the International Tribunal has an educational function and the publication of its
activities helps to achieve this goal. As such, the Judges of this Trial Chamber are, in
general, in favour of an open and public trial. This preference for public hearings is
evident in Article 20 (4) of the Statute, which requires that: "The hearings shall be
public unless the Trial Chamber decides to close the proceedings in accordance with its
rules of procedure and evidence." Also relevant is Rule 78, which states that:
"All proceedings before a Trial Chamber, other than deliberations of the Chamber,
shall be held in public, unless otherwise provided."
33. Nevertheless, this preference for public hearings must be balanced with other
mandated interests, such as the duty to protect victims and witnesses. This balance is
expressly required in Rule 79, which provides that the press and public may be excluded
from proceedings for various reasons, including the safety or non-disclosure of the
identity of a victim or witness. As such, in certain circumstances, the right to a public
hearing may be qualified to take into account these other interests.
34. These qualifications on the right to a public hearing are permitted under the
Statute and Rules. Article 20 (4) of the Statute provides for the possibility of closed
hearings and Article 20 (1) requires that due regard be given for the protection of
victims and witnesses. Article 21 (2) provides that the accused is entitled to a fair and
public hearing "subject to Article 22", which requires that provisions be made
for the protection of victims and witnesses, including in camera proceedings and
the protection of the identity of the victim or witness.
35. Several of the Rules relate to the balance between the protection of victims and
witnesses and the accused s right to a public hearing. Rule 69 allows for the
non-disclosure at the pre-trial stage of the identity of a victim or witness who may be in
danger until the witness is brought under the protection of the International Tribunal.
This non-disclosure applies to the press and public as well as to the accused. Rule 75
allows for the taking of appropriate measures to protect victims and witnesses, provided
such measures are consistent with the rights of the accused. As already noted, Rule 79
provides that the press and public may be excluded from proceedings for reasons of public
order or morality; the safety or non-disclosure of the identity of a victim or witness; or
the protection of the interests of justice.
36. Measures to protect the confidentiality of victims and witnesses are also
consistent with other human rights jurisprudence. Article 21 of the Statute states that
the accused shall be entitled to a fair and public hearing subject to Article 22 (the
protection of victims and witnesses, including in camera proceedings and protection
of the victim's identity). The Defence argues that Article 22 should not be construed as
an exception to the right of a public hearing contained in Article 21 as, in the
perception of the ICCPR and the ECHR, the protection of victims and witnesses is not
sufficient to set aside the right of the accused to a fair and public hearing. What is
essential to recognize, however, is that the Statute of the International Tribunal, which
is the legal framework for the application of the Rules, does provide that the
protection of victims and witnesses is an acceptable reason to limit the accused's right
to a public trial. As noted above, the Trial Chamber must interpret the provisions of the
Statute and Rules within the context of its own unique framework. Therefore, just as the
ICCPR and ECHR provide for the limitation of the right to a public trial to protect public
morals, the Statute authorizes limits to the right to a public trial to protect victims
and witnesses. This is explicit in Rule 75.
37. Even if the rulings of other international judicial bodies were binding on the
Trial Chamber, they would not necessarily prohibit measures to protect the confidentiality
of victims and witnesses, as these bodies tend to balance the interests of the victims and
witnesses with the rights of the accused without the affirmative duty to do so. Article 14
(1) of the ICCPR and Article 6 (1) of the ECHR state that everyone is entitled to a fair
and public hearing. Nevertheless, both articles provide that the press and public may be
excluded in the interest of morals, public order or national security, where the interests
of juveniles or the protection of the private life of the parties so require, or to the
extent strictly necessary in special circumstances where publicity would prejudice the
interests of justice.
38. In construing Article 6 (1) of the ECHR, the European Court of Human Rights has
noted that the publicity requirement in Article 6 (1) applies to any phase of a proceeding
which affects the determination of the matter at issue. (Axen v. Federal Republic of
Germany, decision of 8 December 1983, Series A, no. 72.) Nevertheless, this case held
that the proceedings as a whole must be examined to determine whether the absence of
certain public hearings is justified. (Id. para. 28.) The Court has also held that
the right to publicity may not necessarily be violated if both parties to a proceeding
consent to it being held in camera. (Le Compte, Van Leuven and De Meyere v.
Belgium, decision of 23 June 1981, Series A no. 43, para. 59.) In general, the
Commission and the Court consider whether one of the specific conditions listed on Article
6 (1) prevails before accepting that a given in camera proceeding has not been
conducted in violation of that article. In a similar vein, this Trial Chamber must
determine if one of the specific interests it has an obligation to consider, such as the
protection of victims and witnesses, mandates a limitation on public access to
information.
39. Measures to prevent the disclosure of the identities of victims and witnesses to
the public are also compatible with principles of criminal procedure in domestic courts.
There is a growing acceptance in domestic jurisprudence of the need to protect the
identity of victims and witnesses from the public when a special interest is involved.
Several common law countries allow for the non-disclosure to the public of identifying
information relating to certain victims and witnesses. The United Kingdom prohibits
disclosure to the public of identifying information of a complainant in a sexual assault
case, including any still or moving pictures, except at the discretion of the court. (The
Sexual Offences (Amendment) Act 1976 s. 4.) Canadian legislation guarantees anonymity from
the public upon application to the court. (Canadian Criminal Code s. 442(3).) In
Queensland, Australia, the Evidence Act (Amendment) 1989 (Queensland) allows additional
protection during the testimony of a "special witness" including the exclusion
of the public and or the defendant or other named persons from court. (Brief of Professor
Chinkin at 4 - 6.) South African law also provides for the non-disclosure for a certain
period of time of the identity of a witness in a criminal proceeding if it appears likely
that harm will result from the testimony (Criminal Procedure Act of South Africa 51/1977,
sec. 153(2)(b)) and has provisions for closing the courtroom during the testimony of
victims in cases of sexual assault.
40. Even the United States of America, with its constitutionally-protected rights to a
public trial and free speech - which thus places great importance on the right of public
disclosure - is more amenable than in the past to measures to protect victims and
witnesses. The Supreme Court of the United States has held that state sanctions imposed on
the press for disclosing the identities of sexual assault victims before trial may be
constitutional, and three state statutes provide for such sanctions.2
Florida Star v. BJF, 491 U.S. 524 (1989). Other United States courts have also
noted that the accused's right under the Sixth Amendment to a public trial is not absolute
and must, in some cases, give way to other interests essential to the fair administration
of justice. (Waller v. Georgia, 467 U.S. 39, 46 (1984).) In this regard, courts
have been willing to close certain proceedings to account for the concerns of witnesses.
If a partial closure is requested, i.e., excluding only certain spectators, there must be
a "substantial reason" for such closure, whereas a full closure to the public
and press requires an "overriding interest." (For partial closure see Douglas
v. Wainwright, 739 F.2d 531 (11th Cir. 1984), cert. denied 469 U.S. 1208 and
for total closure see Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984),
and Waller, 467 U.S. 39 (holding that tests set out in Press-Enterprise
govern total closures).) Partial closures of the courtroom have been justified on the
grounds of a witness' fear of retribution from perpetrators still at large (Nieto v.
Sullivan, 879 F.2d 743 (10th Cir.), cert. denied, 110 S. Ct 373 (1989)); to
protect the dignity of an adult witness during a rape trial (United States ex rel.
Latimore v. Sielaff, 561 F.2d 691 (7th Cir.), cert. denied 434 U.S. 1076
(1977), see also Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.), cert. granted
468 U.S. 1206 (1983), vacated and remanded, 739 F.2d 531 (1984), in which
protection of an adult prosecution witness from embarrassment was held to be sufficient
for partial closure of a rape trial); and to protect a minor rape victim from fear of
testifying before disruptive members of the defendant's family (U.S. v. Sherlock,
962 F.2d 1349 (9th Cir. 1989) see also Geise v. United States, 262 F.2d 151, 155
(9th Cir. 1958), cert. denied, 361 U.S. 842 (1959) in which the reluctance and fear
of a child witness in a rape case to testify in the presence of a full courtroom justified
closure of the courtroom to all but press, members of the bar, and close friends and
relatives of the defendant). Complete closure for a limited time has been justified to
protect the safety of a witness and his family (United States v. Hernandez, 608
F.2d 741 (9th Cir. 1979)); to preserve confidentiality of undercover agents in narcotics
cases (United States ex. rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.), cert.
denied, 423 U.S. 937 (1975)); and to protect disclosure of trade secrets (Stamicarbon,
N.V. v. American Cyanamid Co., 506 F.2d 532 (2d Cir. 1974)). Twenty-six state statutes
allow for closure of trials to protect witnesses.3
2 Florida, Georgia and South Carolina have statutory
prohibitions of disclosure by the media. See Brief of Professor Chinkin 5.
3 State statutes that allow for closure of trials include: Alabama, Alaska,
Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas,
Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Nevada, New Hampshire, New York,
North Carolina, North Dakota, South Dakota, Utah, Vermont, Virginia and Wisconsin.
41. States following the civil law model also provide for measures to prevent the
disclosure of identity of certain victims and witnesses from the public and press. For
example, Swiss law provides that, in cases of sex crimes, the authorities and private
persons are not permitted to publicize the victim's identity if it is necessary to protect
the interests of the prosecution or if the victim requests non-disclosure. The possibility
also exists to close the courtroom during the victim's testimony. (Bundesgesetz Über die
Hilfe an Opfer von Straftaten, art. 5, and see Joint U.S. Brief 29.) In
Denmark, if a victim in an incest or rape case so requests, the trial must be held in
camera, in which case no publicity of the proceedings is allowed. In certain cases the
press is allowed access to the courtroom but is prohibited from reporting identifying
information. (Administration of Justice Act, sec. 29 and 31.) In Germany, publicity can be
restricted or even excluded in order to protect the accused and witnesses.
(Gerichtsverfassungsgesetz sec. 170.) In Greece, the Constitution provides for an
exception to the principle that the trial must be held in public in cases where publicity
is deemed to cause prejudice to morals or to the private lives of the parties.
Particularly in cases of rape, members of the public may be excluded if their presence
might cause grievous suffering or defamation of the victim. (Code of Criminal Procedure
art. 30. See Christine van den Wyngaert, Criminal Procedure Systems in the
European Community (1993).)
42. In these jurisdictions confidentiality is justified if special considerations
exist, such as in cases involving sexual assault. In the context of the conflict in the
former Yugoslavia, even in cases not concerning sexual assault, sufficient considerations
to justify confidentiality may be found in the fear of reprisals during an ongoing
conflict, particularly given the mandated duty of the International Tribunal to protect
victims and witnesses and the inability of the International Tribunal to guarantee the
safety of the victim or witness due to the lack of a fully-funded and operational witness
protection programme at this moment in time.
43. The Trial Chamber has also considered in this respect the confidential submissions
by the Prosecutor and the Defence concerning prior media contact with the witnesses for
whom this protection is sought. Of the six witnesses, three are stated to have had no
media contact, two have given interviews in which the name and identity of the witness has
been withheld or disguised and one, who had previously given interviews in which the
identity was disclosed, is now in a national witness protection programme.
44. The Trial Chamber therefore accepts the arguments of the Prosecutor and grants the
relief sought in Prayers 1, 2, 3, 4, 5, 6, 9, 10 and 12 in respect of witnesses F, G, H,
I, J and K.
B. Victims and Witnesses in Cases of Sexual Assault
45. Four of the witnesses who are sought to be protected by the confidentiality
measures ordered by the Trial Chamber are allegedly victims of, or witnesses to, cases of
sexual assault. The Prosecutor has requested, in Prayer 7, pursuant to Rule 75 (B)(i)(c),
that all of the pseudonymed witnesses be permitted to give testimony through closed
circuit television and thereby be protected from seeing the accused. This is intended to
protect them from possible retraumatization. The Trial Chamber regards such measures as
particularly important for victims and witnesses of sexual assault.
46. The existence of special concerns for victims and witnesses of sexual assault is
evident in the Report of the Secretary-General, which states that protection for victims
and witnesses should be granted, "especially in cases of rape or sexual
assault." (Report of the Secretary-General, para. 108.) It has been noted that rape
and sexual assault often have particularly devastating consequences which, in certain
instances, may have a permanent detrimental impact on the victim. (See Marcus and
McMahon, Limiting Disclosure of Rape Victims' Identities 64 S. Cal. L.Rev. 1019,
120 (1991) and sources cited therein.) It has been noted further that testifying about the
event is often difficult, particularly in public, and can result in rejection by the
victim s family and community. (Brief of Professor Chinkin at 4.) In addition, traditional
court practice and procedures have been known to exacerbate the victim's ordeal during
trial. Women who have been raped and have sought justice in the legal system commonly
compare this experience to being raped a second time. (Judith Lewis Herman, M.D., Trauma
and Recovery (1991) 72, cited in the Joint U.S. Brief.)
47. The need to show special consideration to individuals testifying about rape and sexual assault has been increasingly recognized in the domestic law of some States. (See id. at 22-28, and see Brief of Professor Chinkin at 5-6.) As noted above, several states limit the public disclosure of identifying information about victims and witnesses of sexual assault and provide for the full or partial closure of the courtroom during the victims' testimony. Several other methods are utilized to accommodate the special concerns of these victims while testifying, such as the use of one-way closed circuit television. South Africa allows the use of closed circuit television in cases of sexual offences where a child witness is involved. (See Joint U.S. Brief at 23.) In the United States, several of the constituent states allow closed circuit television in the courtroom, and the Supreme Court held in Maryland v. Craig that one-way closed circuit television can be used without violating the Sixth Amendment right to confrontation when the court finds it necessary to protect a child witness from psychological harm. (497 U.S. 836 (1990).)
48. Another such method is the use of depositions and video conferences. For example,
in the United States thirty-seven constituent states permit the use of videotaped
testimony of sexually abused children.4 In Queensland,
Australia, state law provides that when certain witnesses, including victims of sexual
assault, testify the court may take measures to protect the witness, such as the use of
videotaped evidence in lieu of direct testimony or obscuring the witness' view of the
defendant. (The Evidence Act (Amendment) 1989 (Queensland).) Other mechanisms utilized to
accommodate victims of sexual assault include image- and voice-altering devices, screens
and one-way mirrors.
4 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Wisconsin, and Wyoming. Cited in Maryland v. Craig, 497 U.S. 836, n.2 (1990).
49. In consideration of the unique concerns of victims of sexual assault, a special
Rule for the admittance of evidence in cases of sexual assault was included in the Rules
of the International Tribunal. Rule 96 provides that corroboration of the victim's
testimony is not required and consent is not allowed as a defence if the victim has been
subject to physical or psychological constraints. Finally, the victim's prior sexual
conduct is inadmissible.
50. In determining where the balance lies between the right of the accused to a fair
and public trial and the protection of victims and witnesses, consideration has been given
to the special concerns of victims of sexual assault. These concerns have been factored
into the balance on an individual basis for each witness for whom protection is sought.
Witness F is an alleged victim of forcible sexual intercourse. Witnesses G, H and I are
alleged victims of or witnesses to sexual mutilation. The measures sought by the
Prosecutor are appropriate to protect the privacy rights of witnesses F, G, H and I. These
measures in no way affect the accused's right to a fair and public trial. The protective
measures sought pursuant to Rule 75 will afford these witnesses privacy and guard against
their retraumatization should they choose to testify at trial. Given the individual
circumstances of these four witnesses, the Trial Chamber has determined that protective
measures are warranted, and are allowed by the Statute and Rules.
51. However, the Trial Chamber believes that adequate protection can be provided to
certain of these witnesses without resort to closed circuit television, which involves
removing the witness from the courtroom. Alternative methods such as the installation of
temporary screens in the courtroom, positioned so that the witness cannot see the accused
but the accused may view the witness via the courtroom monitors may also be suitable,
depending upon the technical practicalities, for any witness for whom full anonymity is
not ordered by the Trial Chamber and will give the Trial Chamber the benefit of observing
directly the demeanour of the witness.
52. The Trial Chamber grants the relief sought in Prayer 7 or other similar protection
as may be arranged by the Registry of the International Tribunal with the approval of the
Trial Chamber in respect of witnesses F, G, H and I but denies the relief in respect of
witnesses J and K.
VI. Anonymity
A. General principles and application
53. Two of the Prosecutor's requests relate to non-disclosure of the identities of
certain witnesses to the accused. Prayer 11, as amended, and Prayer 8 are concerned with
keeping the name, address, image, voice and other identifying data of witnesses G, H, I, J
and K from the Defence. The Prosecutor is also seeking to keep the present address and
whereabouts of witness F and relatives of witness F from the Defence. Furthermore, the
Prosecutor requests that the identity of F and her complete statement, redacted only for
the above stated purpose, be released to the Defence no earlier than one month in advance
of the firm trial date.
54. The underlying reasons for the disclosure of the identity of witnesses are clear.
As the European Court of Human Rights noted:
(Kostovski, paragraph 42, ECHR series A, Vol. 166, 23 May 1989.)
Therefore the general rule must be that: "In principle, all the evidence must be
produced in the presence of the accused at a public hearing with a view to adversarial
argument." (Id. para. 41.)
55. However, the interest in the ability of the defendant to establish facts must be
weighed against the interest in the anonymity of the witness. The balancing of these
interests is inherent in the notion of a "fair trial". A fair trial means not
only fair treatment to the defendant but also to the prosecution and to the witnesses. In
a case before the Supreme Court of Victoria, Australia, Jarvie and Another v. The
Magistrates' Court of Victoria at Brunswick and Others, (1994) V.R. 84, 88, Judge
Brooking, when pronouncing on whether anonymity of a witness is in conformity with the
principle of a fair trial stated:
56. Similarly the European Court of Human Rights, when determining whether
non-disclosure of the identity of a witness constitutes a violation of the principle of
fair trial, looks at all the circumstances of the case. (See Kostovski, supra
paras. 43, 45.) The Court identifies any infringement of the rights of the accused and
considers whether the infringement was necessary and appropriate in the circumstances of
the case. The Brief of Professor Chinkin suggests that it is in the public interest for
the International Tribunal to discharge its obligation to protect victims and witnesses
and the Trial Chamber so finds.
57. Under the Statute of the International Tribunal this balancing of interests is
reflected in Article 20, which demands full respect for the rights of the accused and due
regard for the protection of victims and witnesses to ensure a fair trial. The
qualification of the rights of the accused to accommodate anonymity of witnesses is
further elaborated in Article 21 (2) of the Statute, which provides that the accused is
entitled to a fair and public hearing "subject to Article 22". Article 22, in
turn, requires that provisions be made for the protection of victims and witnesses.
58. Within the context of the Rules, anonymity of witnesses at the trial stage is
provided for in Sub-rules 75 (A) and (B)(iii). Measures granting anonymity to a witness
pursuant to this provision remain subject to the requirement of Rule 75 (A) that they be
"consistent with the rights of the accused."
59. In Rule 69 (C), the right of the accused to learn the identities of the witnesses
against him in sufficient time prior to trial is made subject to a decision under Rule 75,
thereby extending the power of the Trial Chamber to grant anonymity to a witness at the
trial stage to the pre-trial stage.
60. In a leading opinion before the English Court of Appeal, R. v. Taylor, transcript of decision at 17 (Ct. App. Crim. Div. 22 July 1994), Lord Justice Evans stated that:
Such discretion must be exercised fairly and only in exceptional circumstances can the
Trial Chamber restrict the right of the accused to examine or have examined witnesses
against him.
61. The situation of armed conflict that existed and endures in the area where the
alleged atrocities were committed is an exceptional circumstance par excellence. It
is for this kind of situation that most major international human rights instruments allow
some derogation from recognized procedural guarantees. (See Article 15 of the ECHR,
Article 4 of the ICCPR and Article 27 of the American Convention on Human Rights.) The
fact that some derogation is allowed in cases of national emergency shows that the rights
of the accused guaranteed under the principle of the right to a fair trial are not wholly
without qualification. Guidance as to which other factors are relevant when balancing all
interests with respect to granting anonymity to a witness can be found in domestic law.
62. First and foremost, there must be real fear for the safety of the witness or her or
his family: "[T]here must be real grounds for being fearful of the consequences if
the evidence is given and the identity of the witness is revealed." (R. v. Taylor,
supra at 17, 18.) Judicial concern motivating a non-disclosure order may be based on
fears expressed by persons other than the witness, e.g., the family of the witness, the
Prosecutor, the Victims and Witnesses Unit, as well as by the witness himself. In this
case, the Defence has expressed concern that a subjective feeling of fear be allowed to
satisfy this criterion. Insofar as the Defence means that there should always be an
objective basis to underscore a feeling of fear, such as the horrendous nature and
ruthless character of the alleged crimes, then that is a submission with which the Trial
Chamber, by majority decision, agrees.
63. Secondly, the testimony of the particular witness must be important to the
Prosecutor's case: "[T]he evidence must be sufficiently relevant and important to
make it unfair to the prosecution to compel the prosecutor to proceed without it." (Id.
at 18.) In this respect it should be noted that the International Tribunal is heavily
dependent on eyewitness testimony and the willingness of individuals to appear before the
Trial Chamber and testify. Further, the Prosecutor has stated that this testimony is
important and, for some witnesses, critical.
64. Thirdly, the Trial Chamber must be satisfied that there is no prima facie evidence
that the witness is untrustworthy. To this end the Prosecutor must have examined the
background of the witness as carefully as the situation in the former Yugoslavia and the
protection sought permit. There should be no grounds for supposing that the witness is not
impartial or has an axe to grind. Nor can non-disclosure of the identity of a witness with
an extensive criminal background or of an accomplice be allowed. Granting anonymity in
these circumstances would prejudice the case of the defence beyond a reasonable degree.
The report by the Prosecutor on the reliability of the witness would need to be disclosed
to the defence so far as is consistent with the anonymity sought. (See R. v. Taylor,
supra at 19.)
65. Fourthly, the ineffectiveness or non-existence of a witness protection programme is
another point that has been considered in domestic law and has a considerable bearing on
any decision to grant anonymity in this case. (See Jarvie, supra at 84, 88.) A
number of the witnesses live in the territory of the former Yugoslavia or have family
members who still live there and fear that they or their family members may be harmed,
either in revenge for having given evidence or in order to deter others. Family members
may still be held in prison camps. Others fear that even as refugees in other countries
they may be at risk. The International Tribunal has no police force that can care for the
safety of witnesses once they leave the premises of the International Tribunal. The
International Tribunal has no long-term witness protection programme nor the funds to
provide for one. In any event, any such programme could not be effective in protecting
family members of witnesses in cases in which the family members are missing or held in
camps.
66. Finally, any measures taken should be strictly necessary. If a less restrictive
measure can secure the required protection, that measure should be applied. The
International Tribunal must be satisfied that the accused suffers no undue avoidable
prejudice, although some prejudice is inevitable. (See R. v. Taylor, supra at 19.)
67. The right of the accused to examine, or have examined, the witnesses against him,
is laid down in Article 21(4) of the Statute of the International Tribunal. Anonymity of a
witness does not necessarily violate this right, as long as the defence is given ample
opportunity to question the anonymous witness. Witness anonymity will restrict this right
to the extent that certain questions may not be asked or answered but, as noted above and
as is evidenced in national and international jurisdictions applying a similar standard,
it is permissible to restrict this right to the extent that is necessary.
68. The Defence concedes the fact that protective measures have to be balanced with the
rights of the accused and that knowledge of the identity of a witness may not, in all
circumstances, be essential for the concept of a fair trial. The Defence does contend,
however, that there is a bottom line below which the rights of the accused may not be
compromised. The Defence argues that this bottom line is best described in the Kostovski
case before the European Court of Human Rights. The Kostovski case is not directly
on point, as it does not relate to the testimony of unidentified witnesses who will be
present in court, whose evidence will be subject to cross-examination, and whose demeanour
is being observed by the Judges of the Trial Chamber. However, the Kostovski case
does indicate that procedural safeguards can be adopted to ensure that a fair trial takes
place when the identity of the witness is not disclosed to the accused.
69. In the Kostovski case the European Court of Human Rights, when determining
whether there had been a violation of the Convention, "ascertained whether the
proceedings considered as a whole . . . were fair." (See Kostovski, supra
para. 39.) The Court concluded that "in the circumstances of the case the constraints
affecting the rights of the defence were such that [the accused] cannot be said to have
received a fair trial." (Id. para. 45.) It concluded, however, that the
handicaps under which the defence has to labour when anonymity is provided can be
counterbalanced by the procedures followed by the court. (Id. para. 43.) Thus,
according to the European Court of Human Rights, certain safeguards built into the
procedures followed by a court of law can redress any diminution of the right to a fair
trial arising out of a restriction of the right of the accused to examine or have examined
witnesses against him.
70. The majority of the Trial Chamber acknowledges the need to provide for guidelines
to be followed in order to ensure a fair trial when granting anonymity. It believes that
some guidance as to what standards should be employed to ensure a fair trial can be
ascertained both from the case law of the European Court of Human Rights and from domestic
law. It recognizes, however, that these standards must be interpreted within the context
of the unique object and purpose of the International Tribunal, particularly recognizing
its mandate to protect victims and witnesses. The following guidelines achieve that
purpose.
71. Firstly, the Judges must be able to observe the demeanour of the witness, in order
to assess the reliability of the testimony. (Id. para. 43.) Secondly, the Judges
must be aware of the identity of the witness, in order to test the reliability of the
witness. (Id. para. 43.) Thirdly, the defence must be allowed ample opportunity to
question the witness on issues unrelated to his or her identity or current whereabouts,
such as how the witness was able to obtain the incriminating information but still
excluding information that would make the true name traceable. The release of nicknames
used in the camps clearly falls into this latter category and the majority of the Trial
Chamber will therefore not allow the release of this information concerning witnesses who
have been granted anonymity without the express consent of these witnesses. Finally, the
identity of the witness must be released when there are no longer reasons to fear for the
security of the witness. (See Article 68 of the German Criminal Code of Procedure
(StPO).)
72. Questions relating to the reliability and the relationship of the witness to the
accused or the victim by the defence must be permitted. If this information is released,
knowledge of the identities of the witnesses would not add considerably to the information
which the defence needs to cross-examine them about the events to which they testify. It
may prevent questioning them about their past history, which could go to their
credibility, but such restriction of the right of the accused would seem to be permissible
in the light of the circumstances. As Judge Brooking observed in the Jarvie case:
(See Jarvie, supra at 90.)
73. According to the Defence, the bottom line formulated in the Kostovski case
is that the accused should be given a proper opportunity to question and challenge a
witness and to be informed about particulars which may enable the accused to demonstrate
that the witness is prejudiced. These rights are sufficiently safeguarded by the
procedural guidelines ensuring a fair trial as outlined above. As long as the Trial
Chamber adheres to these guidelines, the Trial Chamber should order appropriate measures
for anonymity of vulnerable witnesses, bound as it is by its mandated obligation to offer
protection to them in the process of conducting a fair trial.
74. The Rules, especially Rule 89, give the Trial Chamber wide latitude with respect to
the receipt of evidence. In this Rule, perhaps more than anywhere else in the Rules, there
is a departure from some common law systems where technical rules of evidence predominate.
Sub-rules 89 (C) and (D) provide that the only limit on the receipt of relevant evidence
is that it has probative value, and it may be excluded only if it is substantially
outweighed by the need to ensure a fair trial. Anonymous testimony may be both relevant
and probative.
75. The limitation on the accused's right to examine, or have examined, the witnesses
against him, which is implicit in allowing anonymous testimony, does not, standing alone,
violate his right to a fair trial. Indeed, the Defence recognizes that, under certain
circumstances, anonymous testimony is consistent with a fair trial. If the party offering
anonymous testimony is able to meet the guidelines set out herein, the testimony should be
allowed.
76. Now that the framework in which anonymity may function has been set out, the Trial
Chamber has to look at the specific circumstances of this case to determine whether to
grant anonymity would be an appropriate measure for witness protection. In this regard,
the Trial Chamber has paid particular attention to the confidential filings by the parties
concerning prior media contact.
77. Initially, the Trial Chamber must consider the factors that apply to all witnesses.
First, with respect to the objective aspect of the criterion that there must be real fear
for the safety of the witness, it is generally sufficient for a court to find that the
ruthless character of an alleged crime justifies such fear of the accused and his
accomplices. The alleged crimes are, without doubt, of a nature that warrants such a
finding. Secondly, the Prosecutor has sufficiently demonstrated the importance of the
witnesses to prove the counts of the indictment to which they intend to testify. Thirdly,
no evidence has been produced to indicate that any of the witnesses is untrustworthy.
Fourthly, the International Tribunal is in no position to protect the witnesses and or
members of their family after they have testified. When applying these principles to the
specific circumstances that can justify anonymity in an individual case, the evidence with
regard to each of the five witnesses pseudonymed G, H, I, J and K must be examined
separately.
78. Witness G was allegedly forced to participate in the sexual mutilation of Fikret
Harambas ic in charge 5 of the indictment. According to a Declaration filed by one of the
investigators from the Office of the Prosecutor, witness G originally ruled out the
prospect of testifying before the International Tribunal. However, witness G did indicate
that he would consider the possibility if "stringent procedures to ensure his
confidentiality and security" were implemented. The Defence is aware of the true name
of this witness as witness G has, in the past, appeared in the media without disguising
his identity. The Defence is not aware, however, of a new identity under a national
witness protection programme. The Trial Chamber, by majority, orders that the present
identity and whereabouts of witness G be withheld from the Defence. His former identity
need not be withheld from the Defence because that identity is already known to them.
79. Witness H was also allegedly forced to participate in the sexual mutilation of
Fikret Harambas ic in charge 5 of the indictment. The Defence asserts that it believes
that it knows the identity of witness H, who has refused to testify unless: "[the]
identity and that of [the] family is completely protected". Because of the reasonable
fear of retaliation felt by the witness and because the Prosecutor has met the guidelines
for anonymity set out above, the majority decision of the Trial Chamber is to order that
the identity of witness H and other identifying information be withheld from the Defence.
80. Witness I is a witness to the alleged sexual mutilation in charge 5 of the
indictment. According to the Prosecutor, this witness has had no media contact. On behalf
of witness I, the Prosecutor has submitted a Declaration from one of his investigators
stating that:
This statement fails to satisfy the threshold requirement that the witness requests
anonymity from the accused. The Trial Chamber has granted the request of the Prosecutor
for confidentiality for witness I from the public and the media, measures which are
designed to give witness I the protection from "public disclosure" that he
seeks. The obligation of the International Tribunal to protect witnesses should not go
beyond the level of protection they are actually seeking.
81. It is alleged that witnesses G, H and I together support charge 5 of the
indictment. Witness G has been denied anonymity by the Trial Chamber insofar as it relates
to his former identity of which the Defence is already aware. Witness I is also alleged to
be a witness to this mutilation. As noted above, it has been asserted that there is
"a strong likelihood" that witness I would decline to give evidence if public
disclosure was a condition of his testimony. The Trial Chamber has declined to allow
witness I to testify anonymously but has granted full confidentiality to protect against
public disclosure. The Prosecutor has not disclosed whether he will have other evidence
regarding this charge and, of course, the Trial Chamber does not mean to suggest that
additional evidence is required. At this stage of the proceeding, however, the accused is
not denied a fair trial by the decision to permit witness H to testify anonymously.
82. According to the Prosecutor, witnesses J and K have had no media contact. Both fear
reprisals against themselves and members of their families. Again it is asserted by the
Prosecutor that witness J will not testify unless the identity is protected. Witness K has
also requested that the identity and the identity of family members be protected. The
Defence requests the release of the addresses of these witnesses at the time of the
alleged offence in order to examine neighbours about the events of charge 11. Neither
their identity nor their image is needed for an effective cross-examination, for the
Defence asserts that its need is to "examine neighbours". Because of the
reasonable fear of retaliation felt by these witnesses and because the Prosecutor has met
the guidelines for anonymity set out above, the Trial Chamber, by majority decision,
orders the non-disclosure of the identities and other identifying information relating to
witnesses J and K.
83. It is alleged that witnesses J and K are "critical witnesses" to charge
11, for they are said to have observed armed forces beat and shoot persons in their
neighbourhood. The Defence asserts that:
The defence has no interest in data concerning present whereabouts of any witness for the prosecution.
As the Defence has indicated that it does not need to observe the images of these
witnesses while testifying, the accused is not denied his right of cross-examination if
the images of witnesses J and K are distorted or otherwise withheld from the accused.
However, the Trial Chamber is not persuaded that it is necessary to release the addresses
of the witnesses at the time that the alleged crimes took place in order to examine the
circumstances of that charge. Revealing the former addresses of witnesses J and K is
tantamount to revealing their identity. A less precise description will be sufficient to
place the witnesses in their proper setting without giving actual addresses. The majority
of the Trial Chamber believes that these witnesses are bystanders. Therefore, their
contextual identity is sufficient to assure the accused a fair trial. Providing the
Defence with their general locality meets the requirement of contextual identification,
for this information will be sufficiently precise to allow the Defence to make enquiries
of others in the vicinity as to what they saw of the incidents of which J and K speak. The
Trial Chamber finds that withholding their addresses will not deny the accused his right
to a fair trial. Judge Stephen concurs with such decision subject to confirmation by the
Prosecutor that witnesses J and K were, indeed, mere bystanders. The Prosecutor is
directed to provide the Defence with the above general locality for witnesses J and K not
less than thirty (30) days in advance of the firm trial date.
84. The Trial Chamber, by majority, finds that the Prosecutor has met the necessary
standard to warrant anonymous testimony in respect of witnesses H, J and K. If, after
considering the proceedings as a whole, as suggested in Kostovski, the Trial
Chamber considers that the need to assure a fair trial substantively outweighs this
testimony, it may strike that testimony from the record and not consider it in reaching
its finding as to the guilt of the accused. It would be premature for the Trial Chamber to
determine now that such testimony must be excluded.
85. This balancing of interests shows that, on the one hand, there is some constraint
to cross-examination, which can be substantially obviated by the procedural safeguards. On
the other hand, the Trial Chamber has to protect witnesses who are genuinely frightened.
In this situation the Trial Chamber, by majority, grants anonymity to witnesses G (of
present identity only), H, J and K as requested by the Prosecutor in his Prayer 11 (a).
The Prosecutor's Prayer in the alternative is denied.
86. As Lord Justice Beldam in the judgement given by the Queen's Bench Divisional Court
in the British case of R. v. Watford Magistrates' Court [1992] T.L.R. 285 stated:
(Cited in R.v. Taylor, supra at 15.)
Therefore the Trial Chamber, by majority, orders that the voices and images of
witnesses H, J and K be altered to the extent that this will be necessary to prevent their
identities from becoming known to the accused. The Prosecutor's Prayer 8 is granted in
respect of these three witnesses H, J and K but denied in respect of witnesses F, G and I.
B. Release of edited recorded eyewitness testimony to the media.
87. In view of the right of the public to learn about the administration of justice in
the International Tribunal, and especially because the International Tribunal has been
established to prosecute serious violations of international humanitarian law in which the
world community has a special interest, the Trial Chamber has decided that, after review
by the Victims and Witnesses Unit, edited recordings and transcripts of the proceedings
shall be released to the media. Editing will take place at the discretion of the
Coordinator of the Victims and Witnesses Unit for the necessary protection of the
witnesses, subject to the overall control of the Trial Chamber.
VII. Miscellaneous and general measures sought
88. The Prosecutor's request for measures to protect the identity of witness A has been
withdrawn. The Prosecutor intends to release details of the identity of witness A as early
as reasonably practicable and, in any event, prior to the commencement of the trial. The
Defence asks for the identity to be released right away, asserting that, as the request
for protection has been withdrawn, any further denial of information constitutes an
inequality of examination. The Trial Chamber agrees with the Defence and orders the
identity of witness A to be released immediately.
89. Furthermore, in his alternative Prayer 11 (a), the Prosecutor asks for delayed
disclosure of the identity of witness F and the Defence consents to this. The Defence
requests that the nickname as used in the camp also be released. The Trial Chamber orders
in accordance with both requests. The release of the nickname is necessary to enable the
Defence to place this witness in context. Rule 67 (A) requires that the identity of each
witness shall be notified to the defence "as early as reasonably practicable and in
any event prior to the commencement of the trial". In exceptional circumstances where
disclosure of identity is ordered under Rule 69, Sub-rule (C) requires that the identity
be disclosed "in sufficient time prior to the trial to allow adequate time for
preparation of the defence". The Trial Chamber therefore orders that the identity and
nickname of witness F be released not less than thirty days in advance of the firm trial
date in order to allow the Defence sufficient time to prepare its case.
90. The Prosecutor has also sought non-disclosure of the current address of witness F
and of the relatives of witness F. The Defence has confirmed that it has no interest in
the present whereabouts of any witness. The Trial Chamber therefore grants this request.
91. The Prosecutor has already delivered to the Defence the redacted statements of
witnesses G, H, I, J and K. The Trial Chamber has determined that witnesses H, J and K are
entitled to full anonymity and therefore no further information needs to be disclosed to
the Defence concerning the statements of these witnesses. The Trial Chamber, by majority,
orders that the full statements of witnesses G and I, redacted only so far as may be
necessary to preserve the anonymity of witnesses H, J and K and the current identity of
witness G, be released to the Defence not later than thirty days in advance of the firm
trial date.
92. The Trial Chamber has thus disposed of all of the requests for protection made by
the Prosecutor with the exception of those contained in Prayers 13 and 14. In view of the
measures for the protection of witnesses ordered by the Trial Chamber, the relief sought
in Prayer 13 flows as a logical consequence and is granted accordingly.
93. Prayer 14 raises a number of practical difficulties for the Trial Chamber in that
the enforcement of the powers of the International Tribunal in respect of contempt of its
Orders and Decisions depends, as with many of its other powers, on the cooperation of
States. However, the Trial Chamber grants the relief requested in Prayer 14 in so far as
it relates to the six protected witnesses in the matter now before it.
DISPOSITION
For the foregoing reasons THE TRIAL CHAMBER, being seized of the Motion filed by
the Prosecutor, and
PURSUANT TO RULE 75,
HEREBY GRANTS the Prosecutor's requests contained in Prayers 1, 2, 3, 4, 5 and
6, Prayer 7 (in respect of witnesses F, G, H and I only), Prayer 8 (in respect of
witnesses H, J and K only), Prayers 9 and 10, Prayer 11 (a) (as to witnesses G, H, J and K
only) and Prayers 12, 13 and 14 and ORDERS AS FOLLOWS:
(2) the names, addresses, whereabouts and other identifying data concerning persons
given pseudonyms F, G, H, I, J and K shall not be disclosed to the public or to the media;
(3) all hearings to litigate the issue of protective measures for pseudonymed witnesses
shall be in closed session;
(4) the names, addresses, whereabouts and other identifying information concerning F,
G, H, I, J and K shall be sealed and not included in any of the public records of the
International Tribunal;
(5) to the extent the names of, or other identifying data concerning, any of these
victims and witnesses are contained in existing public documents of the International
Tribunal, those names and other identifying data shall be expunged from those documents;
(6) documents of the International Tribunal identifying these witnesses shall not be
disclosed to the public or the media;
(7) the testimony of witnesses F, G, H and I may be given by one-way closed circuit
television or such other method as will avoid the retraumatization of these witnesses;
(8) the testimony of witnesses F, G, H, I, J and K shall be heard in closed session:
however, edited recordings and transcripts of these sessions shall be released to the
public and the media after review by the Victims and Witnesses Unit of the International
Tribunal;
(9) the pseudonyms F, G, H, I, J and K shall be used whenever referring to these
witnesses in proceedings before the International Tribunal and in discussions among
parties to the trial;
(10) the Prosecutor shall disclose to the Defence and the accused the name and complete
statement of witness F not less than thirty days in advance of the firm trial date. The
Prosecution may redact from witness F's statement witness F's current address and
whereabouts, and information disclosing the present address and whereabouts of the
witness' relatives;
(11) the Prosecutor may withhold from the Defence and the accused the current identity
of, and other identifying data concerning, witness G and the names of, and other
identifying data concerning, witnesses H, J and K;
(12) the Prosecutor shall disclose to the Defence and the accused the complete
statements of witnesses G and I, redacted only so far as may be necessary to preserve the
anonymity of witnesses H, J and K and the current identity of witness G, not later than
thirty days in advance of the firm trial date;
(13) the Prosecutor shall provide the Defence with details of the general locality for
witnesses J and K not less than thirty days in advance of the firm trial date;
(14) the testimony of witnesses H, J and K may be given using voice and image altering
devices to the extent necessary to prevent their identities from becoming known to the
accused;
(15) the accused, the defence counsel and their representatives who are acting pursuant
to their instructions or requests shall not disclose the names of these victims and
witnesses or other identifying data concerning these witnesses to the public or to the
media, except to the limited extent such disclosure to members of the public is necessary
to investigate the witnesses adequately;
(16) any such disclosure shall be done in such a way as to minimize the risk of the
victims' and witnesses' names being divulged to the public at large or to the media;
(17) the accused, the defence counsel and their representatives who are acting pursuant
to their instructions or requests shall notify the Office of the Prosecutor of any
requested contact with prosecution witnesses or the relatives of such witnesses and the
Office of the Prosecutor shall make arrangements for such contact;
(18) the public and the media shall not photograph, video record or sketch the six protected witnesses appearing in this matter while they are in the precincts of the International Tribunal.
THE TRIAL CHAMBER DENIES the request in Prayer 7 in respect of witnesses J and
K, the request in Prayer 8 in respect of witnesses F, G and I and the alternative request
in Prayer 11 (b).
-----------------------------------
Gabrielle Kirk McDonald
Presiding Judge
Dated this tenth day of August 1995
At The Hague
The Netherlands
[Seal of the Tribunal]