Innovative Procedures

The first version of the Tribunal’s Rules of Procedure and Evidence included a rule developed in order to to avert the trauma that survivors of sexual violence may undergo when facing their aggressor and when experiencing intrusive questioning in court.

“ Rule 96 provides that corroboration of the testimony of a victim of sexual violence is not required. ”

Rule 96 provides that corroboration of the testimony of a victim of sexual violence is not required. This rule ensured that the crime of sexual violence would not fall under the stringent evidentiary standards applied to other types of crimes, thus addressing a problem experienced in some domestic systems. It shows a realistic understanding of the particular nature of the crime of sexual violence, which often takes place with no witnesses or only witnesses acting in collaboration with the perpetrator.

The rule also sets out that evidence concerning the prior sexual conduct of the victim will not be admitted into evidence. The Mucić et al. Trial Chamber explained that the objective of this rule is to “adequately protect victims from harassment, embarrassment and humiliation”. The judges added that admission of such evidence would “lead to a confusion of issues, therefore offending the fairness of the proceedings”, that it would amount merely to an attempt to “call the reputation of the victim into question” and that it would cause “further distress and emotional damage to the witness”.

In addition, Rule 96 defines the circumstances under which evidence of consent will not be admissible. In the cases of Kunarac et al. and Gacumbitsi, the ICTY and ICTR Appeals Chambers respectively confirmed that non-consent is an element of the crime of rape that the Prosecution must prove. Rule 96 then addresses the manner in which non-consent may be proven, namely by “proving the existence of coercive circumstances under which meaningful consent is not possible”, namely when the victim: a. has been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression, or b. reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear. In other words, where rape has occurred as part of an ongoing genocide campaign or detention of the victim, a trial chamber can infer the absence of consent.

“ It's just not foreseeable that consent could be a defence when a woman is in such a coercive and life-threatening situation as a war. ”

This was a revolutionary departure from many national systems in which victims may be regarded as having consented even in circumstances where they were threatened or because they did not put up active resistance. Gabrielle Kirk McDonald, former President of the ICTY, explained the essence of the Tribunal’s innovatory approach: “It's just not foreseeable that consent could be a defence when a woman is in such a coercive and life-threatening situation as a war”.

Furthermore, in order to preserve the right of the accused to present a defence, the rule provides that “before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera (session closed to public) that the evidence is relevant and credible.” This provided an additional protective measure for the victims, as private or distressing details are not discussed in open court and can only be pursued by the defence if there is a valid basis, in contrast to historically accepted practice in many national jurisdictions.

It is often indispensable to protect the identity of victims and witnesses testifying before the Tribunal in sexual violence cases. Many victims fear for their safety when they decide to testify. Secondly, the stigma that often follows the victims of sexual violence presents a real obstacle to their efforts to re-socialise and continue with their lives.

“ Counselling and support to witnesses “in particular in cases of rape and sexual assault.” ”

One of the first decisions of the newly-established Tribunal was to set up a special Victims and Witnesses Section (VWS). It was the first specialised service in international criminal justice devoted entirely to preserving the safety and dignity of vulnerable witnesses. Pursuant to Rule 34 of the ICTY Rules of Procedure and Evidence skilled professionals are mandated to give counselling and support to witnesses “in particular in cases of rape and sexual assault.”

VWS is a powerful advocate of the witness’ security, as it advises the judges on the protective measures witnesses may need. Some of the protection mechanisms include the following:

• Withholding of the witness’ name (and other identifying information) from all public records
• Withholding of all or parts of testimony from broadcast and public records
• Screens to sit behind while testifying, so that no one in the court’s public gallery will see the witness, or allowing the witness to give evidence in a session completely closed to the public
• Electronic distortion of the witness’ face and voice in the court video feed
• The opportunity to testify in another room via one-way closed-circuit TV, so that the witness need not see the accused
• The opportunity to testify from the witness’s home country through video-link in case when absence from home location might compromise security for example
• Coordination with authorities in the witness’ home country to ensure protective measures on the ground
• Relocation to a third country, in cases of “a verifiable, identifiable and sustained threat to the life of a witness”

The Tribunal takes witness' protection seriously. Anyone found guilty of disclosure of confidential information about a witness, or who intimidates or in any way tries to influence the testimony of a witness can be tried for contempt of court. The maximum penalty is seven years of imprisonment, or a 100.000 EUR fine, or both.

Through its long-lasting relationship with survivors, the Tribunal has become sensitive to the emotional consequences that victims face when coming to testify especially if they must face the perpetrators in court and stand long hours of questioning about horrific events from the past, away from home and family.

That is why during their stay in The Hague, victims who testify receive access to round-the-clock practical and psycho-social assistance provided by the VWS. When required, the VWS offers psychological counselling designed to ease the possible trauma of testimony. Experienced staff reinforce the witness’s coping mechanisms, and ensure that they fully control their input and exercise of rights during court proceedings. Moreover, the VWS staff monitor the court appearance, at all times ensuring that the witness is not exposed to unbearable strain. After the testimony, VWS officers help witnesses reflect on their court experience and try to help bring some form of closure. Wendy Lobwein, former Witness Support Officer, described how at the end of their testimony witnesses had “this incredible sense of relief. They have done what they really believed they couldn’t do… For some, I’ve had letters… saying it was a groundbreaking moment in their life.”