1. What is the role of victims and witnesses in proceedings at the Tribunal?
2. What is the Victims and Witnesses Section (VWS)?
3. Does every witness contacted during investigation appear before court?
4. What are the different methods of testifying?
5. How is a witness examined in court?
6. What is a “protected witness”?
7. What kind of protection can a witness expect after his or her testimony?
8. What is “relocation of a witness”?
9. What are “Rule 96 cases”?
10. Do witnesses get paid for their testimony?
11. When is a witness held in contempt of the Tribunal?
1. What is the role of victims and witnesses in proceedings at the Tribunal?
Victims and witnesses play a crucial part in ICTY proceedings. Unlike the Nüremberg trials which relied primarily on documentary evidence, the ICTY relies on witnesses to provide the majority of the information. A testimony not only enables the judges to render a fair judgement, it also helps the people of the region and the international community to learn the truth about the crimes committed in the former Yugoslavia and to deter persons from committing these crimes again. By testifying, witnesses make a necessary and valuable contribution to the restoration of justice and reconciliation in the region. In addition to that, testifying at the Tribunal also provides an opportunity for victims to describe what happened to them.
2. What is the Victims and Witnesses Section (VWS)?
The Victims and Witnesses Section is an independent and impartial section of the Tribunal’s Registry which is responsible for ensuring the safety and security of all witnesses, whether called by the prosecution, the defence, or the court itself. The VWS consists of three units: the Protection Unit coordinates responses to the security requirements, the Support Unit provides social and psychological counselling and assistance to witnesses, and the Operations Unit is responsible for logistical operations and witness administration. The VWS is also assisted by a Field Office in Sarajevo which provides victims and witnesses from the former Yugoslavia with easier access to the protection and support services of the VWS, both before and after they testify before the ICTY.
3. Does every witness contacted during investigation appear before court?
When it comes to testifying, one must differentiate between two segments: the “investigation stage” and the “trial stage”. During the former, investigators will speak to numerous witnesses in an attempt to establish what happened. However, not all individuals interviewed during the preparation of a case will be called to testify in the courtroom. The prosecution and the defence will determine the most appropriate witnesses to appear before the judges. According to the Rules of Procedure and Evidence of the ICTY, the judges also have the possibility to invite witnesses to the stand.
4. What are the different methods of testifying?
● Oral testimony
The witness is physically present in court and will tell the court what he or she saw or heard, or what he or she knows of the accused or other events upon which he or she is being questioned. In exceptional circumstances, if for example a witness cannot travel, he or she may give evidence away from the seat of the Tribunal by way of live video-conference link.
● Deposition
In exceptional circumstances, a witness may be asked by the court to give evidence by way of deposition. A deposition can either be taken in The Hague or elsewhere by a representative of the court in the presence of the prosecution and the defence. The party who has not requested the deposition shall have the right to cross-examine the person whose deposition is being taken. The proceedings will be recorded, at least on audio tape.
● Evidence in the form of a written declaration
The court may, in certain circumstances, admit evidence in the form of a written declaration. An official authorised to witness such a declaration shall be present. The court may nevertheless decide whether the witness is required to appear in court for further questioning.
5. How is a witness examined in court?
The side that brought the witness (either the prosecution or the defence) begins by asking the witness questions. This is referred to as “direct examination”. When the prosecution or defence is finished with the direct examination, the other side is allowed to question the witness. This is called the “cross-examination”. Afterwards, the side that brought the witness to the stand may ask him or her some more questions related to issues raised in the cross-examination. This is known as “re-direct examination”. According to the Rules of Procedure and Evidence, the judges may also ask questions at any time during the witness testimony.
6. What is a “protected witness”?
The majority of witnesses testifying at the Tribunal do so in public. However, a number of steps –referred to as protective measures – can be taken to withhold or protect the identity of a witness from the public.
The most common protective measure practiced at the Tribunal is when the Trial Chamber agrees to withhold from the public the name of a witness. The witness would then be given a pseudonym during proceedings and in the case, such as Witness AB. Additionally, the witness while testifying in court can request that he or she are not seen by the public and that protective measures, such as disguising their voice on the audio broadcast, are utilized.
Such measures can only be ordered by the Trial Chamber when they believe there is a real risk to the person testifying.
In certain cases the Trial Chamber may also decide to go into private session, which is commonly used as a temporary measure to deal with administrative issues. In all such proceedings the court participants are present. In some situations the Tribunal may hold hearings in closed session, this measure is usually undertaken for the complete testimony of a witness but again all court participants (judges, prosecution, defence and accused) are present. Anything which is discussed in closed session is expunged from public records. Finally, a witness may testify remotely so that they not have to see the accused. The witness will be able to hear what is going in court and of course they will be seen by all court participants.
7. What kind of protection can a witness expect after his or her testimony?
The Victims and Witnesses Section (VWS) is tasked with assisting victims and witnesses during their testimony at the Tribunal. The Tribunal has no resources to provide extensive support for victims and witnesses after they return to their place of residence. However, the VWS is working with relevant local authorities and NGOs to establish a network of agencies that would be able to provide ongoing counselling and/or psychological support to witnesses as needed. If witnesses need protection when returning to their place of residence after their testimony, the Tribunal will have to refer such cases to the local authorities, since the court has no police force of its own. If necessary, or if the witness prefers not to contact local authorities, he or she may also contact the VWS for assistance.
8. What is “relocation of a witness”?
In extreme cases, a witness can be relocated to a third country after his or her testimony, possibly under a changed identity. This drastic measure will only be recommended when the Victims and Witnesses Section (VWS) assesses that there exists a verifiable, identifiable and sustained threat to the life of a witness. Relocation is applied very rarely, and it is decided upon by the Tribunal’s Registry.
9. What are “Rule 96 cases”?
Rule 96 of the Rules of Procedure and Evidence is specifically to assist victims testifying in sexual assault cases. In cases of sexual assault no corroboration of the victim’s testimony shall be required. Consent shall not be allowed as a defence if the victim has been subjected to or threatened with, or has had reason to fear violence, duress, detention or psychological oppression. Neither can consent be allowed if it is reasonably believed that if the victim did not submit, another person might be subjected to sexual assault, threatened or put in fear. Before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber “in camera” (in private) that the evidence is relevant and credible. Prior sexual conduct of the victim shall not be admitted in evidence.
10. Do witnesses get paid for their testimony?
Witnesses only receive compensation from the Tribunal to cover their expenses while they are in The Hague. One is called a “daily allowance” and the other is called the “attendance allowance”. The payment of the daily allowance is to cover incidental expenses a witness incurs while in The Hague. The attendance allowance is paid for the duration of travel and stay in The Hague and the amount paid is set at the rate of a minimum United Nations salary in the country where the witness resides. This allowance is designed to compensate the witness for any lost wages, economic loss and the expenses at home for the time the witness is away. If a witness considers that the attendance allowance is not sufficient to cover losses and suffers undue economic hardship, he or she can apply to the Tribunal for an “exceptional loss” claim. It is the Registrar who will decide if the witness is entitled to additional payment.
11. When is a witness held in contempt of the Tribunal?
If a witness knowingly and wilfully interferes with the Court’s administration of justice, he or she could be held in contempt of the Tribunal. This includes situations such as: disobedience and failure to answer questions; the disclosure of information in knowing violation of an order of one of the Chambers; and, without just excuse, the failure to comply with an order to attend before a Chamber. The Court may issue summons to a witness ordering his or her attendance at the Tribunal. Giving false testimony also constitutes an offence under the Rules of the ICTY. The maximum penalty that may be imposed for contempt is the payment of 100,000 euros or a term of imprisonment of seven years, or both.