Skip to main content
SpringerLink
Log in

The Protection of Victims in War Crimes Trials

  • Chapter
  • First Online:
Victims of International Crimes: An Interdisciplinary Discourse

Abstract

International criminal courts and tribunals rely mainly on victim testimony to establish the occurrence of war crimes. These institutions face important challenges in protecting victims. Many victims are reluctant to provide testimony in fear of retaliation. For these persons, testifying requires an act of courage, especially because persons allegedly involved in the crimes still walk the streets of their villages and towns. International courts have developed protection mechanisms to address the security concerns of victims. In doing so, they have had to reconcile the conflicting rights of victims and defendants. The experience of the International Criminal Tribunal for the former Yugoslavia captures some of the challenges faced by international courts in victim protection. It also provides valuable lessons to future courts.

The author is Trial Attorney, Office of the Prosecution, International Criminal Tribunal for the Former Yugoslavia. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Tribunal for the Former Yugoslavia or the United Nations in general. The author thanks Priya Gopalan for her helpful comments on an earlier version of this chapter.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 109.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Wald 2002, pp. 217, 219. Whereas the tribunals in Nuremberg and Tokyo relied primarily on documentary evidence, the modern international tribunals make extensive use of the testimonies of survivors and eyewitnesses to establish the facts and render judgment. See May 2003, pp. 161, 165.

  2. 2.

    Kippenberg 2009, p. 1.

  3. 3.

    See Stover 2005, pp. 74–82.

  4. 4.

    More detailed statistics on the protective measures applied at the ICTY are available at www.icty.org.

  5. 5.

    UNDP 2010, p. 27; see ICTY’s 1994 Annual Progress Report, para 39, available at www.icty.org.

  6. 6.

    Information Booklet for ICTY Witnesses—Victims and Witnesses Section, ICTY Registry, 2007, p. 19. See Rule 34 of the Rules. The VWS has three units: an Operations Unit, a Support Unit and a Protection Unit. In 2011, the Operations and Support Units assisted 494 witnesses travelling to The Hague to give evidence. The Protection Unit coordinated responses to threats received by witnesses before, during and after their court testimony. It also worked to relocate witnesses. See ICTY’s 2011 Annual Progress Report, para 86, available at www.icty.org.

  7. 7.

    Information Booklet for ICTY Witnesses—Victims and Witnesses Section, ICTY Registry, 2007, pp. 19–22.

  8. 8.

    Article 20 (1) of the ICTY’s Statute requires a trial chamber to ensure that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. Article 21 (2) entitles the accused to a fair and public hearing, subject to Article 22, which requires the Tribunal to adopt measures for the protection of victims and witnesses.

  9. 9.

    See e.g. ICTY Prosecutor v Tadić, TC II, IT-94-1-T, 10 August 1995, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, paras 13–16; ICTY Prosecutor v Brđanin and Talić, TC II, IT-99-36-PT, 3 July 2000, Decision on Motion by Prosecution for Protective Measures, para 7; ICTY Prosecutor v Perišić, TC, IT-04-81-PT, 27 May 2005, Decision on Prosecution Motion for Protective Measures for Witnesses, p. 3; ICTY Prosecutor v Karadžić, TC III, IT-95-5/18-T, 19 August 2011, Decision on Prosecution Motions for Protective Measures for Witnesses KDZ601 and KDZ605, para 13.

  10. 10.

    Under Rule 75(F)(i) of the Rules, once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal, they continue to have effect in any other proceedings before the Tribunal.

    At the International Criminal Court (ICC), protective measures should in principle also benefit victims participating in proceedings, as the mandate of the Victims and Witnesses Unit (VWU) covers not only witnesses, but also victims appearing before the Court. The judges in the Lubanga case have interpreted the expression “appearing before the court” in Article 43(6) of the ICC Statute as affording protection to victims from the moment that their completed application to participate is received by the Court. However, in their ruling, they recognised that there are limitations to the extent to which the VWU can realistically provide protection to these victims. ICC Prosecutor v Lubanga, TC I, ICC-01-04-01/06-1119, 18 January 2008, Decision on Victims’ Participation, para 137.

    Similarly, the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia mandate the court with the protection of “victims who participate in proceedings, whether as complainants or Civil Parties, and witnesses”. See Rule 29(1) of the Internal Rules of the Extraordinary Chambers, Internal Rules (Rev. 8) as revised on 3 August 2011.

  11. 11.

    See e.g. ICTY Prosecutor v Milošević, TC III, IT-02-54-T, 3 May 2002, First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses, para 8. Article 43(6) of the ICC Statute provides that the Victims and Witnesses Unit’s mandate covers victims and witnesses, as well as “others who are at risk on account of the testimony given by such witnesses”. Some have argued in favour of protective measures for intermediaries and lawyers acting on behalf of the victims. See Pena 2008, p. 4.

  12. 12.

    See e.g. ICTY Prosecutor v Stanišić and Simatović, TC I, IT-03-69-T, 17 August 2011, Reasons for Granting Protective Measures to Witness DST-043, para 6; ICTY Prosecutor v Gotovina et al., TC I, IT-06-90-T, 11 November 2009, Decision on Defendant Ivan Čermak’s Motion for Admission of Evidence of Two Witnesses Pursuant to Rule 92bis and Decision on Defendant Ivan Čermak’s Third Motion for Protective Measures of Witnesses IC-12 and IC-16, para 13.

    The ICTR has also recognised the need to protect defence witnesses. See ICTR Prosecutor v Nyiramasuhuko, TC II, ICTR-97-21-T, 17 June 2005, Decision on Nyiramasuhuko’s Motion for Additional Protective Measures for Defence Witness WBNM; ICTR Prosecutor v Karera, TC I, ICTR-01-74-T, 9 February 2006, Decision on Defence Motion for Protection of Witnesses, paras 2–4. See also Sluiter 2005, pp. 962–976.

  13. 13.

    In contrast to the ICTY’s individualised approach to granting protective measures, the ICTR has adopted a more liberal approach when considering protection requests, which has been criticised as overly flexible. For a more detailed analysis, see Pozen 2006, pp. 281, 295–307; Sluiter 2005, pp. 962, 967–969.

  14. 14.

    See ICTY Prosecutor v Karadžić, supra n 9, para 9; ICTY Prosecutor v Mrkšić et al., TC II, IT-95-13/1-T, 25 October 2005, Decision on Prosecution’s Additional Motion for Protective Measures of Sensitive Witnesses, para 5.

  15. 15.

    See ICTY Prosecutor v Karadžić, supra n 9, para 11; ICTY Prosecutor v Stanišić and Simatović, TC I, IT-03-69-T-20 July 2011, Reasons for Granting Protective Measures to Witness DST-035, para 7; ICTY Prosecutor v Vasiljević, TC II, IT-98-32-T, 24 July 2001, Order on Protective Measures for Witnesses at Trial, p. 1.

    At the Special Court for Sierra Leone (SCSL), the physical location of the Court itself has been considered a compelling factor in considering the merits of protective measures application, as it increased the risks to witnesses called at trial. See SCSL Prosecutor v Norman, TC, SCSL-04-14-T-126, 8 June 2004, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, para 29.

  16. 16.

    ICTY Prosecutor v Mrkšić et al., supra n 14, para 4; ICTY Prosecutor v Brđanin and Talić, supra n 9, para 10.

  17. 17.

    ICTY Prosecutor v Mrkšić et al., supra n 14, para 5.

  18. 18.

    ICTY Prosecutor v Delić, TC III, IT-04-83-PT, 1 December 2006, Decision on the Prosecution Motion for Protective Measures, pp. 3, 4; ICTY Prosecutor v Milutinović et al., TC III, IT-05-87-PT, 1 June 2006, Decision on Prosecution Sixth Motion for Protective Measures, para 18.

  19. 19.

    See expert report of Stephanie Schwandner-Sievers, cited in ICTY Prosecutor v Limaj et al., TC II, IT-03-66-T, 30 November 2005, Judgement, para 13.

  20. 20.

    ICTY Prosecutor v Limaj et al., supra n 19, paras 13, 15.

  21. 21.

    ICTY Prosecutor v Tadić, supra n 9, paras 41–52. See also SCSL Prosecutor v Sesay et al., TC, SCSL-04-15-T-180, 5 July 2004, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, pp. 16–17.

  22. 22.

    Chinkin 1997, p. 78; Stover 2005, pp. 72–75.

  23. 23.

    ICTY Prosecutor v Janković and Stanković, TC I, IT-96-23/2-PT, 19 August 2005, Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-Representation, para 21.

  24. 24.

    ICTY Prosecutor v Tadić, supra n 9, para 36.

  25. 25.

    See Rule 79 of the Rules.

  26. 26.

    ICTY Prosecutor v Tadić, supra n 9, paras 84, 85. At the ICC, the Lubanga trial chamber allowed victims to participate in the pre-trial proceedings in an anonymous capacity albeit with limited rights. See ICC Prosecutor v Lubanga, PTC I, ICC-01/04-01/06-462-tEN, 22 September 2006, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, p. 6. See also Jouet 2007, pp. 249, 261–266.

  27. 27.

    ICTY Prosecutor v Tadić, supra n 9.

  28. 28.

    ICTY Prosecutor v Tadić, IT-94-1-T, 10 August 1995, Separate Opinion of Judge Stephen on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses.

  29. 29.

    For a more detailed analysis, see Mahony 2010, pp. 8, 9; Pozen 2006, pp. 281, 287–294; Leigh 1996, pp. 235–238; Chinkin 1997, pp. 75–79.

  30. 30.

    See Rules 66(A)(i) and (ii) of the Rules.

  31. 31.

    Rule 69(A) of the Rules expresses the power to make a non-disclosure order in relation to a victim or witness who may be in danger or at risk “until such person is brought under the protection of the Tribunal”. This rather curious wording appears to assume that the Tribunal has a witness protection programme which will render the non-disclosure order no longer necessary once it comes into operation, which is not the case.

  32. 32.

    ICTY Prosecutor v Karadžić, TC III, IT-95-5/18-PT, 30 October 2008, Decision on Protective Measures for Witnesses, para 19, citing ICTY Prosecutor v Brđanin and Talić, supra n 9, para 11.

  33. 33.

    ICTY Prosecutor v Mladić, TC I, IT-09-92-I, 24 June 2011, Decision on Prosecution Motion for Protective Measures for Victims and Witnesses and Documentary Evidence, paras 11–14; ICTY Prosecutor v Karadžić, TC III, IT-95-5/18-PT, 2 September 2008, Decision on Prosecution Motion for Non-Disclosure, paras 11, 16; ICTY Prosecutor v Haradinaj et al., TC II, IT-04-84-PT, 22 November 2006, Decision on Second Haradinaj Motion to Lift Redactions of Protected Witness Statements with Confidential Annex, paras 21–23; ICTY Prosecutor v Brđanin and Talić, supra n 9, para 22.

  34. 34.

    See ICTY Prosecutor v Hadžić, TC II, IT-04-75-PT, 30 November 2011, Decision on Prosecution Second Motion for Protective Measures for Victims and Witnesses and Documentary Evidence, para 12; ICTY Prosecutor v Karadžić, supra n 32, para 34; ICTY Prosecutor v Delić, supra n 18, p. 6.

  35. 35.

    See ICTY Prosecutor v Mrškić, supra n 14, p. 8. In the Karadžić case, the defendant requested that the Chamber exclude the testimonies of all delayed disclosure witnesses, arguing that the prosecution had failed to disclose their identities prior to the start of trial and that this had prejudiced the preparation of his defence. In denying this motion, the Chamber noted that the well-established interpretation of Rule 69(C) allowed for delayed disclosure after the commencement of trial. See ICTY Prosecutor v Karadžić, TC III, IT-95-5/18-T, Decision on Accused’s 66th Disclosure Violation Motion, 8 February 2012, para 20.

  36. 36.

    Statistics on protective measures are available at www.icty.org/sid/158.

  37. 37.

    Information Booklet for ICTY Witnesses—Victims and Witnesses Section, ICTY Registry, 2007, p. 22. Similarly, at the ICC, the Registrar is responsible for deciding on the relocation of witnesses. In the Katanga case, the ICC Appeals Chamber stressed that the Prosecutor cannot unilaterally “preventively relocate” witnesses as a provisional measure either before the Registrar has decided whether a particular witness should be relocated or after the Registrar has decided that an individual witness should not be relocated. It held that any disagreement between the Victim and Witness Unit and the Prosecutor about the relocation of a witness should ultimately be decided by the Chamber dealing with the case—and should not be resolved by the unilateral and un-checked action of the Prosecutor. See ICC Katanga and Chui, AC, ICC-01/04-01/07 OA 7, 26 November 2008, Judgment on the Appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber I, paras 1–2 and 93.

  38. 38.

    Information obtained from VWS by the author.

  39. 39.

    See ICTY Prosecutor v Karadžić, TC III, IT-95-5/18-T, 22 November 2011, Decision on Accused’s Sixtieth, Sixty-First, Sixty-Third and Sixty-Fourth Disclosure Violation Motions.

  40. 40.

    ICTY Prosecutor v Haradinaj et al., TC II, IT-04-84bis-T, 12 October 2011, Decision on Joint Defence Motion for Relief from Rule 68 Violations by the Prosecution and for Sanctions Pursuant to Rule 68bis.

  41. 41.

    Wald 2002, pp. 217, 224.

  42. 42.

    See Wald 2002, pp. 217, 223. For an analysis of the implementation of protective measures in ICTR proceedings, see Pozen 2006, pp. 281, 303–308; Sluiter 2005, pp. 962, 967–971.

  43. 43.

    Paterson 2003, pp. 95, 97.

  44. 44.

    Haider and Welch 2008, pp. 55, 84.

  45. 45.

    Paterson argues that the public acknowledgement of the crimes is more important to victims than the punishment of the perpetrators. Paterson 2003, pp. 95, 97.

  46. 46.

    ICTY Prosecutor v Tadić, AC, IT-94-1-A, 15 July 1999, Appeals Judgement, para 48. See also Cassese 2008, p. 384. On the right of the Prosecution to a fair trial, see ICTY Prosecutor v Haradinaj, AC, IT-04-84-A, 19 July 2010, Appeals Judgement, paras 34–51.

  47. 47.

    ICTY Prosecutor v Jović, AC, IT-95-14 & 14/2-R77-A, 15 March 2007, Appeals Judgement, para 22.

  48. 48.

    ICTY Prosecutor v Šešelj, TC III, IT-03-67-R77.4, 24 May 2011, Public Edited Version of “Decision on Failure to Remove Confidential Information from Public Website and Order in Lieu of Indictment” Issued on 9 May 2011, p. 10.

  49. 49.

    ICTY Prosecutor v Margetić, TC I, IT-95-14-R77.6, 7 February 2007, Judgement on Allegations of Contempt, paras 69, 70.

  50. 50.

    Ibid. para 81.

  51. 51.

    Ibid.

  52. 52.

    See ICTY Prosecutor v Marijačić and Rebić, TC III, IT-95-14-R77.2, 10 March 2006, Judgement, para 39; ICTY Prosecutor v Haxhiu, TC I, IT-04-84-R77.5, 24 July 2008, Judgement on Allegations of Contempt, para 28; ICTY Prosecutor v Hartman, AC, IT-02-54-R77.5-A, 19 July 2011, Appeals Judgement, paras 158–165.

  53. 53.

    ICTY Prosecutor v Haxhiu, supra n 52, para 40.

  54. 54.

    ICTY Prosecutor v Šešejl, AC, IT-03-67-R77.2-A, 19 May 2010, Public Redacted Appeals Judgement, para 42.

  55. 55.

    Mahony 2010, p. 1.

  56. 56.

    Wald 2002, pp. 217, 220. Similarly, witnesses before the ICTR have been targeted for retribution after testifying. Mahony 2010, p. 64.

  57. 57.

    ICTY Prosecutor v Limaj et al., supra n 19, para 15.

  58. 58.

    Ibid.

  59. 59.

    ICTY Prosecutor v Haradinaj et al., TC I, IT-04-84-T, 3 April 2008, Judgement Summary.

  60. 60.

    ICTY Prosecutor v Haradinaj et al., TC I, IT-04-84-T, 3 April 2008, Judgement, para 22.

  61. 61.

    Ibid.

  62. 62.

    ICTY Prosecutor v Haradinaj et al., supra n 46, paras 35, 49–51.

  63. 63.

    See ICTY Prosecutor v Haraqija and Morina, TC I, IT-04-84-R77.4, 17 December 2008, Judgement on Allegations of Contempt; ICTY Prosecutor v Beqaj, TC I, IT-03-66-T-R77, 27 May 2005, Judgement on Contempt Allegations.

  64. 64.

    See ICTY Prosecutor v Rašić, TC III, IT-98-32/1-R77.2, 7 February 2012, Contempt Judgement; ICTY Prosecutor v Brđanin, TC II, IT-99-36/R77, 8 May 2003, Order Instigating Proceedings against Milka Maglov; ICTY Prosecutor v Avramović and Simić, TC III, IT-95-9-R77, 30 June 2000, Judgement in the Matter of Contempt Allegations against an Accused and his Counsel. See also ICTY Prosecutor v Tabaković, TC II, IT-98-32/1-R77.1, 18 March 2010, Sentencing Judgement.

  65. 65.

    See ICTY Prosecutor v Šešejl, supra n 54; ICTY Prosecutor v Šešejl, TC, IT-03-67-R77.3, 31 October 2011, Public Redacted Version of ‘Judgement’ issued on 31 October 2011.

  66. 66.

    UN Security Council Resolution 1966 (2010).

References

  • Cassese A (2008) International Criminal Law, 2nd edn. OUP, New York

    Google Scholar 

  • Chinkin C (1997) Due process and witness anonymity. AJIL 91:75–79

    Google Scholar 

  • Haider H, Welch T (2008) The prosecution of witnesses in Bosnian war crimes trials: a fair balance between the interests of victims and the rights of the accused? DLJ 20:55–86

    Google Scholar 

  • Jouet M (2007) Reconciling the conflicting rights of victims and defendants at the international criminal court. Saint Louis Univ Public Law Rev 26:249–308

    Google Scholar 

  • Kippenberg J (2009) Protecting child victims in sexual violence trials in the DR Congo: suggestions for the way forward. Human Rights Watch, New York. www.hrw.org

  • Leigh M (1996) The Yugoslav Tribunal: use of unnamed witnesses against the accused. AJIL 90:235–237

    Google Scholar 

  • Mahony C (2010) International Criminal Court’s victims and witnesses unit: a mandate to protect all? In: Mahony C (ed) Justice sector afterthought: witness protection in Africa. Institute for Security Studies, Pretoria

    Google Scholar 

  • May R (2003) The collection and admissibility of evidence and the rights of the accused. In: Lattimer M, Sands P (eds) Justice for crimes against humanity. Hart Publishing, Oxford, p 161

    Google Scholar 

  • Paterson N (2003) Silencing victims in international courts: neglecting a solemn obligation. GJIA 4:95

    Google Scholar 

  • Pena M (2008) Time for the ICC to take on protection of intermediaries and lawyers. VRWG Access Bulletin, Issue 13

    Google Scholar 

  • Pozen J (2006) Justice obscured: the non-disclosure of witnesses’ identities in ICTR trials. JILP 38:281–322

    Google Scholar 

  • Sluiter G (2005) The ICTR and the protection of witnesses, 3 JICJ, pp. 962–976

    Google Scholar 

  • Stover E (2005) The witnesses: war crimes and the promises of justice in The Hague. University of Pennsylvania, Philadelphia

    Google Scholar 

  • UNDP (2010) Needs assessment in the field of support to witnesses/victims in Bih. A situation and needs assessment of the cantonal / district prosecutors’ offices and courts in the field of witness/victim support and protection in war crimes cases in Bih. http://www.undp.ba/upload/publications/Needs%20Assessment%20in%20the%20Field%20of%20Support%20to%20Witness-Victims%20in%20BiH.pdf. Accessed 15 April 2013

  • Wald P (2002) Dealing with witnesses in war crimes trials: lessons from the Yugoslav Tribunal. YHRDLJ 5:217

    Google Scholar 

Further Literature

  • Affolder NA (1997–1998) Tadić, the anonymous witness and the sources of international procedural law. Mich J of Int L 19:445–496

    Google Scholar 

  • Cassese A, Gaeta P and Jones JRWD (eds) (2002) The Rome Statute of the International Criminal Court: a commentary. Oxford University Press, Oxford

    Google Scholar 

  • Fyfe NR (2001) Protecting intimidated witnesses. Ashgate Publishing Company, Burlington

    Google Scholar 

  • Haslam E (2004) Silencing hearings? Victim-witnesses at war crimes trials. Eur J Int L 15:151–177

    Google Scholar 

  • Kuhner TK (2004) The status of victims in the enforcement of international criminal law. Oreg Rev Int L 6:95–152

    Google Scholar 

  • Leigh M (1997) Witness anonymity is inconsistent with due process. Am J of Int L 91:80

    Google Scholar 

  • Nijboer JF (2000) Children and young persons in the criminal justice system: The Council of Europe recommendation on witness protection and rights of the defence. Crim L Forum 10:443

    Google Scholar 

  • Safferling CJM (2002) International criminal procedure and its participants: an examination of the interaction of judges, prosecutor and defence at the Yugoslav Tribunal. Yrb Int Hum L 5:219–252

    Google Scholar 

  • Trechsel S (2005) Human rights in criminal proceedings. Oxford University Press, Oxford

    Google Scholar 

  • Walleyn L (2002) Victimes et témoins de crimes internationaux: du droit à un protection au droit à la parole. Int Rev of the Red Cr 84(845):51–78

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Office of the Prosecution, International Criminal Tribunal for the Former Yugoslavia, The Hague, The Netherlands

    Daniela Kravetz

Authors
  1. Daniela Kravetz
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Daniela Kravetz .

Editor information

Editors and Affiliations

  1. Institut fur Soziologie, Philips Universitat, Ketzerbach 11, Marburg, 35032, Germany

    Thorsten Bonacker

  2. , Institut für Kriminalwissenschaften, Philipps-Universität Marburg, Universitätstraße 6, Marburg, 35032, Germany

    Christoph Safferling

Rights and permissions

Reprints and permissions

Copyright information

© 2013 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors

About this chapter

Cite this chapter

Kravetz, D. (2013). The Protection of Victims in War Crimes Trials. In: Bonacker, T., Safferling, C. (eds) Victims of International Crimes: An Interdisciplinary Discourse. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-912-2_9

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation