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Report No. 198

Article 21: Protection of Victims and Witnesses.

"The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protective measures shall include, but shall not be limited to, the conduct of, in camera proceeding and the protection of the victim's identity."

6.11.3 Rules of the Tribunal (1995):

(i) Rule 89A states that the Tribunal is not bound by national rules of evidence.

(ii) Rule 89C states that any relevant evidence is admissible if it is in accordance with the requisites of a fair trial.

(iii) Rule 96(i) states that in cases of victims of sexual assault, no corroborative evidence is necessary.

(iv) Rule 34 deals with Victims and Witnesses Support Unit.

(v) Rule 69 deals with Protection of Victims and Witnesses:

"Rule 69: (A) In exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise.

(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Support 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 prosecution and the defence."

(vi) "Rule 70: Matters not subject to Disclosure:

(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions.

(B) If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or the entity providing the initial information and shall, in any event, not be given in evidence without prior disclosure to the accused.

(C) If, after obtaining the consent to the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the persons or entity providing the initial information, nor may the Trial Chamber, for the purpose of obtaining such additional evidence, itself summon that person or a representative of that entity as a witness or order their attendance.

(D) If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality.

(E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to limitations contained in Sub Rules (C) and (D).

(F) Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber's power under Rule 89(C) to exclude evidence if its protective value is substantially outweighed by the need to ensure a fair trial.

(vii) Rule 71: Deposition (i.e. to be taken elsewhere or by videoconference)

(A) At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer.

(B) The motion for the taking of a deposition shall be in writing and shall indicate the name and whereabouts of the witness whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the exceptional circumstances justifying the taking of the deposition.

(C) If the motion is granted, the party at whose request the deposition is to be taken, shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross examine the witness.

(D) The deposition may also be given by means of a videoconference.

(E) The presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross examination and objections raised by either party for decision by the Trial Chamber. He shall transmit the record to the Trial Chamber."

(viii) "Rule 73 (bis): Pre-trial Conference:

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

(B) At the Pre-trial conference, the Trial Chamber or a Judge designated from amongst its Members may order the Prosecutor, within a time limit set by the Trial Chamber 1 st Judge and before the date set for trial, to file the following:

(i) A pre trial brief ....

(ii) Admissions by the parties....

(iii) .... .... ....

(iv) A list of witnesses the Prosecutor intends to call with

(a) the name or pseudonym of each witness

(b) a summary of the facts on which each witness will testify

(c) the points in the indictment on which each witness will testify; and

(d) the estimated length of time required for each witness.

(v) A list of exhibits ......

(C) ....

(D) ....

(F) ....

(ix) Rule 73 ter: Pre-Defence Conference

(A) ....

(B) ....

(C) ....

(D) ....

(E) ....

(F) ....

(x) Rule 74: Amicus Curiae-A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any State, organization or person to appear before it and make submissions on any issue specified by the Chamber.

(xi) Rule 74 bis: Medical examination of the Accused

(xii) 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 Support Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused.

(B) A Chamber may hold an in camera proceeding to determine whether to order notably:

(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:

(a) Expunging names and identifying information from the Tribunal's public records;

(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 session, 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 control the manner of questioning to avoid any harassment or intimidation.

(xiii) Rule 76: Solemn Declaration by Interpreters and Translators

(xiv) Rule 77: Contempt of the Tribunal:

6.12 Judgments:

There are a number of judgments of the Tribunal under the Rwanda statute and they have been following the precedents of the Yugoslav Tribunal.

We shall, however, refer to one judgment of the Trial Chamber-I.

6.12.1 The Prosecutor v. Jean-Paul Akayesu (2.9.1998)

The charges involved genocide and other violations of human rights where 2000 Tutsis were killed in 1994. There were contradictions in the evidence but the Trial Chamber attributed it to the trauma of the witnesses. It said that "Many of the eye-witnesses who testified before the Chamber in this case have seen the atrocities against their family members or close friends, and/or have themselves been victims of such atrocities.

The possible traumatision of these witnesses caused by their painful experience of violence during the conflict in Rwanda is a matter of particular concern for the Chamber. The recounting of this traumatic experience is likely to evoke memories of the fear and pain once inflicted on the witnesses and thereby affects his or her ability fully or adequately to recount the sequence of events in a judicial context".

The Chamber did not exclude the possibility of trauma and stress, it believed the evidence, in spite of discrepancies, and order non-disclosure of the identity of witnesses to the media or public. The accused were convicted.



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