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Report No. 198

6.10.The Yugoslav Tribunal:

In 1993, the U.N. Security Council created the International Criminal Tribunal for former Yugoslavia (ICTY) in response to large scale crimes involving ethnic cleansing in the former Yugoslavia. With the experience of Nuremberg trials, the UN Office of Legal Affairs drafted an enabling statute which the Security Council adopted in May 1993, called the Statute of the International Tribunal for Yugoslavia (available at
http://www.un.org/icty/basic/stutut/statute .hcm).

The General Assembly elected the first 11 ICTY Judges in September 1993. Between November 1993 and February 1994, the Judges drafted the ICTY Rules pursuant to Art. 15 of the Statute.

While Art. 21 ensured a right to cross-examine and a fair trial, Art. 22 clearly stated that the right was not absolute and is subject not only to incamera proceedings but also to protection of witness/victim-identity.

The ICTY Rules of Procedure and Evidence, like those of the postWorld War II Tribunals, reflect a hybrid approach that combines features that are generally associated with both common law adversarial and civil law inquisitorial systems.

6.10.2 Prosecutor v. Tadic (1997) and anonymity to witness/victim:

Tadic, an ethnic Serb from Bosni.- Herzogovina was arrested in Germany on February 12, 1994, charged in connection with crimes committed in the Omarska prison camp during 1992. Pursuant to a request by ICTY, Germany transferred custody of Tadic to the Tribunal in April 1995. The ICTY indicted Tadic on 132 counts of crimes against humanity and war crimes. The ICTY has jurisdiction over four substantive crimes:

(a) genocide,

(b) crimes against humanity

(c) grave breaches of the Geneva Convention 1949 and

(d) violation of laws or customs of war.

In the ICTY trial, Prosecutor v. Tadic, an evidentiary request by the prosecutor forced the Judges to determine whether witness anonymity is consistent with the defendant's right to a fair trial. This was because several of the prosecution witnesses were unwilling to testify on account of fear of reprisal. The prosecutor wanted the six witnesses to be identified as F, G, H, I, J and K. By a 2:1 majority on 10.8.95, the Judges mandated for anonymity of four witnesses as G, H, J and K
(see http://www.un.org/icty/tadic/trial 2/decision-e/100895 jm.htm).

The prosecutor had requested, in addition or in the alternative to witness anonymity (i) delayed disclosure of witness identity, (ii) in camera hearings and (iii) non-disclosure of identity to the media and (iv) testimony via closed-circuit television with voice-altering technology.

The majority (Judge Gabrielle Kirk McDonald of US and Judge Lalchane Vohrah of Malaysia) accepted that witness anonymity is an extraordinary measure in traditional criminal trials and that it 'could impede' accurate fact-finding and that the accused had a right under Art. 21 of the ICTY statute to 'examine, or have examined, the witnesses against him'. (Art 21 (4)(e) ) and to 'a fair and public hearing' (Art. 21(2)). The majority, however, noted that the latter right is expressly subject to Art. 22 which provides for witness protection and states that the right 'shall include, but shall not be limited to, the conduct of in-camera proceedings and the protection of the victim's (or witness) identity'.

The Tadic majority distinguished judgments of Courts in other countries which had treated as absolute, the right of the accused to confront witnesses. This was because of the Tribunal's particular dependence on eye-witness testimony in a climate of 'terror and anguish among the civilian population' and also because of the unique legal framework of the ICTY statute which provided specially for the protection of victims and witnesses. Moreover, the Tribunal determined that the standards drafted for 'ordinary criminal and civil adjudication' were not appropriate for the 'horrific' crimes and ongoing conflict in the former Yugoslavia.

The Tribunal's majority view was consistent with the fear of retaliation from the personal supporters of the accused, the anti-Tribunal leaders and the members of the opposing ethnic groups. The ICTY did not have a police force of its own and otherwise had to depend on the police systems of the concerned countries for protecting witnesses. Witnesses who knew only the local Serb-Croatian language could not be transplanted into another country.

If witnesses refused to testify out of fear, the Tribunal would be able to try any case effectively. Therefore, anonymity procedures became absolutely necessary. Art. 21(3) of the ICTY statute adequately protected the accused when it said that 'the accused shall be presumed innocent until proved guilty according to the provisions of the present statutes' and Rule 87 gave substance to this presumption by requiring that 'a finding of guilt may be reached only when a majority of the trial chamber is satisfied that guilt has been proved beyond reasonable doubt.

On 7.5.1997, Tadic was convicted by the trial chamber II in respect of crimes against humanity and violation of laws of war.

On appeal by the prosecutor, Tadic was convicted further by the Appeals Chamber for grave breaches of the Geneva Convention of 1949 on nine further counts of the Indictment. On 26.1.2000, by a separate judgment as to sentence, Tadic was sentenced for 20 years imprisonment on counts 1, 29, 30, 31 to be served concurrently with various penalties.

A review filed by Tadic was dismissed by the Appeals Chamber on 30.7.2002.
(http:..www.un.org/icty/tadic/appeal/decision-e/020730 htna)

6.10.3 Prosecutor v. Delilac (1998): video-link procedure & protective measures from media/public:

The Trial Chamber's judgment dated 16 th November, 1998 which runs into 500 pages has been summarized in 20 pages. We shall refer with the summary. The main judgment is one of the most classic judgments on the subject.

The trial of Zejnil Delalic, Zdravv Mucic, Hazrim Deloc and Esado Landzo, before the Trial Chamber 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, commenced on 10th March, 1997 and came to a close on 15 th October, 1998. The case involved applications by both prosecution and defence for protection/anonymity of their respective witnesses.

As stated earlier, the International Tribunal is governed by its Statute which was adopted by the UN Security Council on 25.5.1993 and by its Rules of procedure and evidence, adopted by the Judges on 11.2.94, as subsequently amended. Under the Statute, the Tribunal has power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Articles 2 and 5 of the Statute confer upon the Tribunal, jurisdiction over breaches of the Geneva Conventions of 12.8.1949 (Art 2); violation of the Laws or Customs of war (Art 3); genocide (Art 4); and crimes against humanity (Art. 5).

The indictment against the four accused was issued on 19.3.96 and confirmed by the Judge on 21.3.96. Four of the 49 counts were subsequently withdrawn at trial by the prosecution. At the time of alleged commission of offences, the accused were citizens of the former Yugoslavia and residents of Bosnia and Herzegovina. The indictment was concerned solely with the events alleged to have occurred at a detention facility in the village of Celibici, in the prison camp, during 1992.

The indictment charged the four accused with grave breaches of the Geneva Convention of 1949, (under Art 2 of the Statute), and violation of the laws or customs of war (Art. 3). Zejnil Delilac was co-ordinator of the Bosnian Muslim and Bosnia Croat Forces and later commander of the First Tactical Group of the Bosnian Army. Esad Landzo was the guard at the prison camp and Hazim Delic and Zdiark Mucic were working as commanders.

The summary of Trial chamber judgment contains discussion under various headings on the following aspects (in Part 6): Witness related issues as follows:

(a) Protective measures (paras 49 and 50)

(b) Video-link testimony (para 51)

(c) Disclosure of witness identity (para 52)

We shall extract these paragraphs 49 to 52:

(a) Protective measures:

"49. Protective measures: A series of protective measures were sought by both the Prosecution and the Defence, pursuant to Rule 75, and implemented throughout the trial proceedings with respect to both Prosecution and Defence witnesses. At the pre-trial stage, upon an application filed jointly by both parties, the Trial Chamber issued an order for the non-disclosure of the names or any identifying details of potential witnesses to the public or the media, to ensure the privacy and protection of such victims and witnesses.

50. The Trial Chamber's first Decision on the issue during trial granted protective measures to several prosecution witnesses, including such measures as ordering that protective screens be erected in the Court-room; employing image altering devices to prevent certain witnesses from being identified by the public; ensuring that no information identifying witnesses testifying under a pseudonym be released to the public, and requiring that transcripts of closed-session hearings be edited so as to prevent the release of information that could compromise a witness's safety.

Thereafter, the Prosecution filed several additional motions seeking protective measures for its witnesses. Similarly, members of the Defence sought and were granted protective measures for certain of their respective witnesses."

(b) Video-link testimony:

"51. The Prosecution additionally brought motions requesting that certain witnesses, designated by the pseudonym K, L and M, be permitted to give their testimony by means of a video-link mechanism in order to relieve them from having to come to the seat of the International Tribunal in The Hague to testify. The Trial Chamber granted such a motion with respect to witnesses 'K' and 'L', where the circumstances met the relevant test for permitting video-link testimony although this was ultimately not availed of. A later, confidential motion requesting video-linking testimony for additional witnesses, was denied."

(c) Disclosure of identity:

"52. Prior to trial, the Defence for Esad Landzo moved the Trial Chamber to compel the prosecution to provide the names and addresses of its prospective witnesses. The Trial Chamber, while acknowledging that under Art 20(1) of the Statute, the Defence was entitled to sufficient information to permit it to identify prospective Prosecution witnesses, denied the Defence request, holding that the current address of a witness is not necessary for the purpose of identification.

Subsequently, the Trial Chamber, on a motion by the Prosecution, determined that the Defence, pursuant to sub-Rule 67(A) (ii), has an explicit obligation to disclose the names and addresses of 'those of its witnesses who will testify to alibi and to any special defence offered'. The Trial Chamber held that the Defence disclosure obligation under sub Rule 67(A)(ii) is distinct from that of the Prosecution pursuant to sub Rule 67(A)(i)."

The Trial Chamber by judgment dated 16.11.98 found that the detainees in the camp were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhumane treatment by all the accused as commanders, though they were held not guilty of certain other offences.

The Appeal Chamber by judgment dated 20.2.2001 confirmed certain convictions which included Count 3 (killing), Count 18 (rape amounting to torture) and Count 21 (repeated incidents of forcible sexual intercourse and rape amounting to torture). It remitted 4 issues to the Trial Chamber on 11.4.2001 on the question of 'adjustment' of sentences. The Trial Chamber gave its decision on 9.10.2001 and the further appeal was decided by the Appeal Chamber on 8.4.2003 dismissing the appeals and confirming the convictions.

6.10.4 Important preliminary orders of the Tribunal laying down crucial principles of law:

The orders of the Trial Chamber during the course of trial reveal the interpretation of the Articles/Rules which balance the rights of the accused and of the victims/witnesses. These preliminary orders were passed before the framing of charges and have laid down excellent principles for guidance of domestic Courts.

(A) 18.3.97: decision on defence motion to compel discovery of identity and location of prosecution witnesses.

(B) 8.10.97: decision on prosecution motion for additional measures of protection for prosecution witnesses.

(C) 25.9.97: decision on confidential motion for protective measures for defence witnesses.

(D) 13.6.97: decision on the motion to compel the disclosure of the addresses of the defence witnesses.

(E) 28.5.97: decision on motion to allow prosecution witnesses K, L, M to give their testimony by means of video-link conference.

(F) 28.4.97 decision on motion by prosecution for protective measures for prosecution witness pseudonymed 'B' through to 'M'.

A: Decision dated 18.3.97 on motion of defence to compel discovery of identity and location of prosecution witnesses:

The Trial Chamber partly allowed the application of the defence asking the prosecution to disclose information about the 'name, sex, date of birth, place of origin, names of parents and place of residence at the time relevant to charges' but not the current address of the prosecution witnesses. The Trial Chamber referred to Arts. 20, 21 of the Statute and Rule 67, 69, 75 of the Rules. They read as follows:

Articles of Statute:

Art. 20: Commencement and conduct of trial proceedings:(1) The trial chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the protection of victims and witnesses.

Art. 21: Rights of the accused:

(1) ....

(2) ....

(3) ...

(4) In the determination of any charge against the accused pursuant to the present statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) ...

(b) to have adequate time and facilities for the preparation of his defence and to communicate with the counsel of his own choosing;

(c) .... 395(d) ....

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;"

The following rules of procedure and evidence are also referred to:

"Rule 67: (A) As early as reasonably practicable and in any event, prior to the commencement of the trial:

(a) the Prosecutor shall notify the defence of the names of the witnesses that he intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with sub rule (ii) below;."

"Rule 69: Protection of victims and witnesses:

(A) .... .... .... ....

(B) .... ... .... ....

(C) Subject to para 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."

"Rule 75: Measures for the protection of victims and witnesses: (A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the victims and witnesses Unit, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused."

In para 17 of the judgment, the Trial Chamber observed that in sub Rule 69(C), the word 'identity' has a significance which goes beyond the mere protection of those witnesses. A name by itself is not sufficient to identify the person by whose testimony the charges against the accused are sought to be proven. To identify the witnesses, therefore, it is necessary for the Defence to know further particulars about them, which in turn will satisfy the right of the accused to an adequate preparation of his defence

The Trial Chamber held in para 18 that Rule 75 requires that the privacy and protection of the witnesses may be taken into account and weighed against the rights of the accused. Whilst the Prosecution may, under Rule 39(ii), take special measures to provide for the safety of potential witnesses, these measures relate to the investigative stages of the case. It is not for the Prosecution to provide assurances to witnesses once it has decided that these witnesses will be called to give testimony before the Tribunal. The guarantee of any necessary protective measures is solely a matter for determination by the Trial Chamber.

It said in para 19 that there is no real opportunity to the defence without a proper appreciation of those witnesses. The basic right of the accused to examine witnesses, read in conjunction with the right to have adequate time for the preparation of his defence, therefore, envisages more than a blind confrontation in the Court room. A proper in-Court examination depends upon a prior out-of-Court investigation. Sub rule 69 (c) reflects this by referring to a 'sufficient time prior to the trial'.

The term 'identity' (para 20) does not necessarily include the present addresses of the witnesses. Substantial identification would mean the sex, date of birth, names of parents, place of origin or town or village where the witness resided at the time relevant to the charges.

The Trial Chamber gave the directions already referred to above, except in relation to the present addresses of the witnesses.

(B) 8.10.97: Decision on prosecution motion for additional measures of protection for prosecution witnesses.

This application was rejected without much discussion.

(C) 25.9.97: Decision on confidential motion for protective measures for defence witnesses.

The Trial Chamber gave witness pseudonym protection as 'witness mucic/A' in all proceedings and discussions. It said that the names, addresses and whereabouts of and any other detail concerning 'witness Mucic/A' shall not be disclosed to the public or to the media and this information shall be sealed and not included in the public records of the Tribunal identifying 'witness Mucic/A'. The details shall not be disclosed to the public, the media or any other party.

The Trial Chamber left the question of 'relocation' of the witnesses to be decided by the 'Victims and Witnesses Unit', established under Rule 34, acting under the authority of the Registrar.

The request of the Defence was heard ex parte and in closed session for grant of interim protection, at this stage, where the witness is a potential witness'. It was considered that the witness could be granted interim protection by use of pseudonym though, when the Defence decides to make him an 'actual witness', the question could be decided by giving notice to the prosecutor.

The Trial chamber referred to an earlier decision that grant of pseudonym could be considered necessary if the fear of a witness has been found to be real.

The Chamber held that the particular defence witness will be called 'Witness Mucic/A' in all proceedings before the Tribunal and discussions. The name, address, whereabouts of and any other data including documents concerning 'witness Mucic/A' shall not be disclosed to the public or to the media and this information shall be sealed and not included in the public records of the Tribunal, until further orders.

(D) 13.6.97: Decision on the motion to compel the disclosure of the addresses of the defence witnesses.

This was an application filed by the prosecutor for disclosure of the addresses of the defence witnesses for Esad Landzo, on the question of the alibi pleaded by the defence.

The provision of Rule 67 deal with 'Reciprocal Disclosure'. They read as follows:

Rule 67:(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

(i) the Prosecutor shall notify the defence of the names of the witnesses that he intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with sub-rule (ii) below:

(ii) the defence shall notify the Prosecutor of its intent to offer:

(a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence."

Rule 66: Disclosure by the Prosecutor

Rule 66: (A) .... .... .... .... .... .... .... .... ....

(B) The Prosecutor shall on request, subject to sub-rule

(C), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.

(C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigation, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub rule

(B). When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential."

The Prosecutor requested the Defence (for accused Esad Landzo) to be ordered to disclose the addresses of those witnesses whom they intend to call on the defence of alibi and special defence of diminished or lack of mental capacity. It argued that Sub-Rules 67(A)(ii)(a) and (b) require such disclosure and that the order of the Trial Chamber dated 25.1.97 also required that there be additional disclosure of the witnesses' curriculum vitae and a statement on the area (areas) about which they will testify. The names and addresses of some defence witnesses were disclosed; those of 13 others were not disclosed.

The Defence contended that in the light of the subsequent leakage (after the Trial Chamber's decision dated 18.3.97) to the Press concerning many of these witnesses' identities, it has proved rather fortuitous that the addresses of these 13 witnesses were not furnished by the defence and the leakage must be avoided. Those witnesses who live in Yugoslavia would be subject to great risk if their identity/addresses were disclosed. The defence relied on Sub-Rule 66(c).

The Trial Chamber then held that the 18.3.97 decision was not based on Sub rule 67(A)(ii) in as much as the present issue was about alibi witnesses and special defence of diminished or lack of mental capacity. The argument of Defence that there was no reciprocity could not be accepted as that issue was about alibi-witnesses (which is based on Rule 67(A)(ii) while Rule 67(A)(1) which refers to the prosecutor witnesses) is separate.

As held by the Trial Chamber on 18.3.97, the Prosecutor must provide the Defence with identifying information about all its witnesses, whereas the Defence was obliged to provide information only about those witnesses who would speak on alibi and special defence. Therefore the Defence must provide the names and addresses as per Sub Rule 67(A)(ii). Both parties must circulate the curriculum vitae in advance to each other of their intended expert witnesses, as well as statements about the areas to which they will testify.

However, it was open to either of the parties to apply for protective measures to be granted to particular witnesses who may be at risk and therefore, the Defence can also do this instead of seeking to avoid the obligations on general pleas of potential threat to witnesses. It further observed:

"As has been illustrated by the recent leakage of a Prosecution witness list to the media, it is impossible to absolutely guarantee that confidential information does not find its way into the public domain. However, this is the exceptional case and it cannot and must not be assumed that such a breach of security will not occur again. Furthermore, the Prosecution, has undertaken, as its duty, to do its utmost to ensure that the addresses which it receives remain confidential.

Sub Rule 66(c) is also clear and unambiguous and solely relates to the disclosure of information by the Prosecutor. Moreover, the subjects of the sub Rule are tangible objects and not information concerning the identity of witnesses. The Defence cannot infer any right to apply to Trial Chamber to be relieved of its obligation to disclose the names and addresses of witnesses who clearly fall within Sub Rule 67(A)(ii), from a provision which concerns a separate matter."

The Trial Chamber granted the prosecution motion and directed the defence (for Esad Landzo) to provide the names and addresses of all defence witnesses who are expected to depose on alibi or other special defence to the Prosecutor.

(E) 28.5.97: Decision on motion to allow K, L, M to give testimony by means of Video-link.

On 3.4.97, the Prosecutor filed a motion to allow witnesses K, L and M to give their testimony by video-link conference. The defence for Hazim Debi filed its response.

The Prosecution requested that these three witnesses be designated by pseudonyms K, L and M and be permitted to give evidence by video-link. The motion was confined to K, L and M only in view of the fear of potentially serious consequences to themselves and their families. It relied on Prosecutor v. Dusko Tadic (25.6.96) as the two conditions stated there were satisfie.- namely,

(a) the testimony of three witnesses was sufficiently important to make it unfair to the Prosecutor to proceed without it, and

(b) the witnesses were unable or were unwilling to come to the Tribunal (in the present case for serious medical reasons).

The Defence relied upon Article 21(4)(e) of the Statute and Rule 89 of the Rules of Procedure and Evidence which protect the right of the accused to confront witnesses in open Court.



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