The Protection of Witnesses at the International Criminal Tribunal for the former Yugoslavia

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1 The Protection of Witnesses at the International Criminal Tribunal for the former Yugoslavia The International Tribunal for the former Yugoslavia (ICTY) was established, under Chapter VII of the United Nations Charter, by Resolution 827 of the UN Security Council on 25 May The Tribunal has been mandated by the UN Security Council to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since The Victims and Witnesses Section The Victims and Witnesses Section (VWS) of the International Tribunal was established pursuant to Article 22 1 of the Tribunal s Statute and Rule 34 2 of the Tribunal s Rules of Procedure and Evidence. It works to ensure that all witnesses can testify in safety and security, and that the experience of testifying does not result in further harm, suffering or trauma to the witness. The VWS is a neutral and impartial body and is an integral part of the Registry, which is the administrative arm of the Tribunal servicing the entire Tribunal. It provides protection and support to all witnesses who appear before the Tribunal, whether called by the Prosecution, the Defence, or the Chambers. The Section provides victims and witnesses with counselling and assistance; ensures that the safety and security needs of witnesses are adequately met; recommends measures and takes action to protect witnesses who have or will be heard by the Tribunal; informs them of the proceedings and their rights; makes travel, accommodation, financial, and other logistical and administrative arrangements for witnesses and accompanying persons; and maintains close contact with the trial teams regarding all aspects of the witnesses appearance before the Tribunal. There are three units in the Section. The Protection unit co-ordinates responses to the security requirements, the Support Unit provides social and psychological counseling and assistance and the Operations Unit is responsible for logistical operations and witnesses administration. 1 Article 22 of the ICTY Statute reads: The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim s identity. 2 Rule 34 of the Rules of Procedure and Evidence reads: (A) There shall be set up under the authority of the Registrar a Victims and Witnesses Section consisting of qualified staff to: (i) recommend protective measures for victims and witnesses in accordance with Article 22 of the Satute; and (ii) provide counseling and support for them, in particular in cases of rape and sexual assault. (B) Due consideration shall be given, in the appointment of staff, to the appointment of qualified women.

2 Witness Protection Measures The Tribunal has at its disposal a number of protective measures ranging from expunging names and identifying information from Tribunal records through testimony under a pseudonym, electronic facial distortion, voice distortion and closed session. Further measures such as testimony by way of video-link and testimony from a remote witness room are also available. Prosecutor or the Victims and Witnesses Section (See Rule 75 of the Rules of Procedure and Evidence, which is attached). Witness Relocation However, in some cases, as a result of their appearance before the Tribunal, certain witnesses cannot return to their home countries due to defined and serious concerns for their safety. The Tribunal may, in those cases, seek the cooperation of States to relocate to their territories these witnesses and extended families. The Tribunal has thus far reached agreement with ten States which are willing to accept such witnesses and is in negotiation with several countries who are interested in concluding relocation agreements in the near future. Relocation of a witness is a security arrangement sought under the authority of the Registrar and not a protective measure that must be granted by a Judge or a Trial Chamber. The VWS staff members involved in the protection of witnesses have been recruited from law enforcement agencies throughout the world where they themselves have been directly involved in issues of this nature within their own national judicial system. All proposals by these officers are channeled through the Chief of the section to the Registrar for final decision as to the action to be taken in any particular case. Relocating states will provide a number of benefits to the relocated person and his or her dependents. While these benefits vary from country to country, generally, relocated persons are provided with a right to residency, welfare, health care, education, housing and related entitlements followed after a period of time, by citizenship. These benefits, which at a minimum parallel to refugees under the 1951 Convention, are intended to provide the relocated person with sufficient resources to start a new life in the country of permanent relocation. Although relocation alone is sufficient to address the security concerns of most witnesses, the Registrar may also request that States admit certain particularly vulnerable witnesses into their domestic witness protection programmes, which involve, for example, changes of identity. As part of its responsibility in the provision of protection and support services to victims and witnesses, the VWS has developed a Witness Relocation programme for those witnesses who wait in The Netherlands before relocation to a third country. The VWS is responsible for the very specific and significant needs of relocation witnesses and their families during that period and will protect the true identity and purpose of stay in The Netherlands and intended country of permanent relocation. Once a witness and his or her family are relocated to a third country, they will become subject to the applicable laws and policies of that country. In invoking relocation of witnesses the staff involved are very much aware of the possible abuse of such a system could be put to in order to induce testimony. Given the role the VWS has to play within the International Tribunal, acting on behalf of both the Prosecution and the Defence, it is imperative that the use of witness relocation be open to careful scrutiny. It does follow however that in any such disclosure it must be accepted that the safety of the witness and his or her family must always be paramount.

3 Cooperation of National Law Enforcement Agencies When it comes to witness protection, the International Tribunal, which has no State of its own, will be highly dependent on the cooperation of national law enforcement agencies. The International Tribunal will therefore, if necessary, call in the assistance of national enforcement agencies, to ensure the safety and security of its witnesses. The Protection Unit of the VWS is currently working very closely with law enforcement agencies in The Netherlands as well in the former Yugoslavia.

4 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 Section, order appropriate measures for the privacy and protection 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: (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 a victim or witness 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 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) The Victims and Witnesses Section shall ensure that the witness has been informed before giving evidence that his or her testimony and his or her identity may be disclosed at a later date in another case, pursuant to Rule 75 (F). (D) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation. (E) When making an order under paragraph (A) above, a Judge or Chamber shall wherever appropriate state in the order whether the transcript of those proceedings relating to the evidence of the witness to whom the measures relate shall be made available for use in other proceedings before the Tribunal. (F) Once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the "first proceedings"), such protective measures: (i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the "second proceedings") unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but (ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the nature of the protective measures ordered in the first proceedings. (G) A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seized of the first proceedings; or

5 (ii) if no Chamber remains seized of the first proceedings, to the Chamber seized of the second proceedings. (H) Before determining an application under paragraph (G) (ii) above, the Chamber seized of the second proceedings shall obtain all relevant information from the first proceedings, and shall consult with any Judge who ordered the protective measures in the first proceedings, if that Judge remains a Judge of the Tribunal. (I) An application to a Chamber to rescind, vary or augment protective measures in respect of a victim or witness may be dealt with either by the Chamber or by a Judge of that Chamber, and any reference in this Rule to "a Chamber" shall include a reference to "a Judge of that Chamber".

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