Bosnian War Crimes
The Protection Of Witnesses In Bosnian War Crimes Trials: A Fair Balance Between The Interests Of Victims And The Rights Of The Accused?
In early war crimes trials such as in Nuremburg, documentary evidence was decisive in convicting the defendants. Witness evidence was of lesser importance. In contrast, in Bosnian war crimes trials the testimony of witnesses often forms the bulk of the evidential weight upon which the courts decisions are based. If witnesses do not come to court and provide testimony, trials may not take place.
Witnesses in war crimes trials are much of the time victims of the most horrific acts of brutality. They are often reluctant to come to court and tell their story in public and in front of the accused. Specific measures to protect witnesses and victims are deployed to enable witnesses to give evidence in court. They are designed to ensure the safety of witnesses and to make the experience of testifying as minimally traumatic as possible.
However, witness protection can conflict with the rights of the defendant to have a fair trial, which includes the right to confront his accuser in a public hearing. Where witnesses are granted anonymity or the public is removed to protect the witnesses, a fair trial can be compromised.
This article will focus on the use of protective measures in Bosnian war crimes trials at both the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague and at Bosnia and Herzegovina's (BiH) domestic War Crimes Chamber (WCC) in Sarajevo. Analysis will focus predominantly on the use of witness anonymity and the exclusion of the public from the trial chamber. Both measures have been widely used in Bosnian trials, rendering many of them controversial.
In both courts, protective measures are provided for by law. Due process and the rights of the defence are also fundamental requirements. Since the start of Bosnian war crimes proceedings, both courts have struggled to strike a fair and appropriate balance between the interests of victims and the rights of the accused.
Arguments to justify the use of restrictive measures to protect victims and witnesses often follow a common theme: war crimes trials are unique, taking place in exceptional circumstances. As such, departure from ordinary standards of due process is necessary.
This article will look closely at the approach the courts have taken in balancing the interests of victims and the rights of the accused. Additionally it will examine whether anonymity and the removal of the public is consistent with the jurisprudence of the European Convention on Human Rights. Finally the contention that war crimes trials in general take on a broader purpose than ordinary domestic criminal proceedings will be addressed - looking at the various aims which war crimes trials are said to have.
War broke out in Bosnia and Herzegovina in the early 1990's following declarations of independence from Slovenia and Croatia and the subsequent break-up of Yugoslavia. In March 1992 Bosnia had its own referendum for independence.
Bosnia has three main ethnic groups: Bosniaks (Bosnian Muslims), Croats and Serbs. Croats and Muslims both participated in the referendum, whilst the majority of the Serbian population boycotted the vote.
In April 1992 the United Nations and the European Union officially recognised Bosnia as an independent state. Fighting broke out soon after. The conflict was long, widespread and brutal - and fought along ethnic lines. The scale and ferocity of the violence was something not seen in Europe since the Second World War. The siege of Sarajevo, Bosnia's capital, lasted for just under 4 years arguably making it the longest siege in modern military history. The mass killing of Muslim men and boys in Srebrenica was the worst massacre and only genocide in Europe since 1945. The conflict affected every part of the country and almost all who lived there. It is estimated that between 150,000 and 250,000 people lost their lives.
The conflict also saw the displacement of an estimated 2.2 million persons. This was not a byproduct of war, but its very purpose. It was part of the policy of “ethnic cleansing,” the term used to describe “the elimination by the dominant ethnic group of a given territory of members of other ethnic groups within that territory.”
This was achieved in Bosnia through a variety of methods, including harassment, beatings, torture, rape, summary executions, forced relocation, confiscation of property and destruction of homes and places of worship and cultural institutions. Ultimately, “ninety percent of the pre-war Bosnian-Serb population left the area now called the Federation and over ninety-five percent of the pre-war Bosnian-Croat and Muslim inhabitants fled what would become the Republika Srpksa.”
The war ended in 1995 with the signing of the General Framework Agreement for Peace in BiH, commonly known as the Dayton Peace Agreement. Following Dayton, Bosnia was and continues to be today an independent state, but under international administration. However Bosnia is not the same country it was before the outbreak of war. The war has left the Bosnian people with widespread fear and mistrust of one another.
Against this background, there was a clear need for a process of truth-telling, rebuilding trust and reconciliation. This would take many forms. It included a push to bring to justice those who had perpetrated the many horrific crimes which took place during the conflict.
This was a process which in fact began even before the war's end. On 25 May 1993 the United Nations Security Council unanimously adopted Resolution 827, establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY).
The ICTY was given jurisdiction to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. The court was given primacy over the jurisdiction of domestic courts to prosecute such offences and the courts in Bosnia were obligated to provide unrestricted access to and cooperate with the Tribunal.
The ICTY however, faced many difficulties in its early years and got off to a slow start. The first trial did not commence until May 1996; a guilty verdict was returned on 7 May 1997. Because the Tribunal began operating whilst the fighting was still ongoing and intensifying, it was constrained in its ability to investigate crimes. The Tribunal also had limited resources; it was operating without a police force or, at the time, a witness protection program.
The ICTY has since made good progress. As of 12 February 2008, the court had concluded 111 cases out of a total of 161 indicted accused. As trials progressed at the Hague, and as more time elapsed since war's end, there was a push to conduct trials in Bosnia as well. As remarked by Human Rights Watch, “fair and effective trials of the remaining perpetrators at the domestic level are necessary to further combat impunity in the former Yugoslavia and build respect for the rule of law.”
The new War Crimes Chamber (WCC) of Bosnia and Herzegovina, situated in the Bosnian State Court in Sarajevo, was formally established in January 2005. The court has jurisdiction to try war crimes cases involving intermediary and lower-level accused transferred from the ICTY, and also holds territorial jurisdiction.
The underlying principle of the WCC is that “accountability for the gross violations of human rights that took place during the conflict is of concern to all humanity but ultimately remains the responsibility of the people of Bosnia and Herzegovina themselves.” The court has a fully functioning Witness Protection Support Unit, offering witness support before, during and after hearings. The court also operates under measures to ensure that defendants receive a fair trial. The defendant's rights and standards of due process are enshrined in the ECHR, which has been adopted in the Bosnian Constitution.
The Use Of Protective Measures And The Balance Of Competing Interests Taken By The Courts
“In war crimes trials, as with any criminal case, the reliable and comprehensive testimony of witnesses is essential to a fair and effective procedure”.
The question is - are war crimes trials akin to just ‘any criminal case'? Should victims and witnesses in such situations of conflict and extreme and widespread violations of human rights be afforded greater protections, even if potentially at the expense of the rights of the accused? Or do such cases have a broader purpose for post-conflict societies and the international community that they must be held to strict standards of fair trial and rights of the accused? For witnesses' testimony to be ‘reliable', effective cross-examination and public scrutiny are considered essential. However, for witnesses' testimony to be ‘comprehensive', witnesses need also to be willing and able to come forward and testify in safety and without fear. This debate concerning the rights of the accused and the rights of the victims/witnesses has played out in trials concerning the war in Bosnia and Herzegovina (BiH) - at ICTY and more recently at the WCC of the Bosnian State Court.
Article 21 of the Statute of the ICTY, on the “Rights of the accused” was adopted almost verbatim from Article 14 of the International Covenant on Civil and Political Rights (ICCPR). It specifies a number of minimum guarantees to which the accused is entitled, including the right “to examine, or have examined, the witnesses against him”. Article 21(2) states, “the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute”. Article 22 states that the Tribunal shall provide for protection of victims and witnesses with measures that “shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity”. The Statute differs from the ICCPR by qualifying the accused's right. Rule 69(A) of the ICTY Rules of Procedure and Evidence explains further: “In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.”
In Prosecutor v Tadić, the first case to be tried at the ICTY – and whilst the war was ongoing, the majority opinion in the Protective Measures Decision stated: “A fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses”. Judge McDonald argued that by including an “affirmative obligation to protect victims and witnesses” the drafters of the Statute recognised the “unique” context of the ICTY. This context entailed operating during a continuing conflict and without a witness protection programme.
The prosecution's main protective measures request included anonymity, whereby victims and witnesses would not be identified to the accused or to his lawyers; and confidentiality, whereby victims and witnesses would not be identified to the public and the media. The majority granted anonymity to four witnesses and confidentiality to many more. In so doing, it emphasised the need to balance interests: “on the one hand, there is some constraint to cross-examination, which can be substantially obviated by the procedural safeguards. On the other hand, the Trial Chamber has to protect witnesses who are genuinely frightened”. The judgment provided five guidelines on how to balance these interests with respect to granting witness anonymity:
“First and foremost, there must be real fear for the safety of the witness or her or his family … Secondly, the testimony of the particular witness must be important to the Prosecutor's case … Thirdly, the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy … Fourthly, the ineffectiveness or non-existence of a witness protection programme is another point that has been considered in domestic law and has a considerable bearing on any decision to grant anonymity in this case … Finally, any measures taken should be strictly necessary”.
Applying these five factors, and considering the ongoing armed conflict to be an “exceptional circumstance par excellence”, the majority opinion concluded that anonymous testimony is consistent with the ICTY's Statute and Rules of Procedure and Evidence.
While agreeing with other majority protective measures granted, Judge Stephen was strongly opposed to anonymity. He stressed that the qualification in Article 21(2) must apply solely to “the public quality of the hearing and not its fairness”. In examining Article 22, he relied on the Secretary-General's Report, which when introducing the article, refers to the need for protection measures “especially in cases of rape and sexual assault”. In such cases, Judge Stephen stated that protection is needed not because witnesses in such cases have a greater fear of retaliation, but because of the potential negative social consequences of it being known in communities that one was raped; combined with re-traumatisation from facing one's attacker in court. He noted that the customary measures for these are in camera proceedings and careful control of cross-examination. As such, he concludes that it is such measures, and “not any wholesale anonymity of witnesses”, that Article 22 addresses. Wholesale anonymity, he asserted, would violate the accused's right to examine witnesses – and ultimately, the accused's right to a fair hearing. The accuser, he stressed, “would appear as no more than a disembodied and distorted voice transmitted by electronic means” – yet his or her testimony could be used as evidence to convict the accused on very serious charges.
Human rights commentators and NGOs have also critiqued the use of anonymity. They assert that non-disclosure of the identity of accusing witnesses prevents the accused from conducting background searches of the witness; and prevents the accused from properly preparing for and effectively conducting cross-examination. Further, anonymity precludes the accused challenging the reliability of the witness' testimony based on the accused's personal knowledge of the situation and the person involved; and based on monitoring the witness in court. As such, critics consider anonymity to be a violation of the accused's right to a fair trial.
Since Tadić, the ICTY has moved in the direction of Judge Stephen's dissent – and has not granted any further complete witness anonymity measures. Although the Trial Chamber adopted the five guidelines laid out in Tadić in a subsequent case, Prosecutor v Blaškić, it applied a more restrictive interpretation of them. Its approach was more favourable to the accused:
“[T]he victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media”.
By distinguishing between the periods before and after the commencement of a trial, the Chamber acknowledged the need for the accused to know the identities of witnesses in sufficient time in order to prepare for cross-examination. This progression in ICTY jurisprudence is logical given the development of the Tribunal's witness protection programme, which had been absent at the time of Tadić. The Chamber also found that the “fundamental exceptional circumstance” - an ongoing armed conflict in central Bosnia, which could justify the granting of anonymity to one or more witnesses, no longer existed. As a result of these findings, the Chamber denied the non-disclosure request by the Prosecution and ordered the prosecutor to give the defense unredacted copies of the statements of witnesses. It did, however, order that the defense not disclose the information publicly and granted special protection to some of the witnesses.
The Trial Chamber in Prosecutor v Brđanin and Talić also raised the standards of what comprised ‘exceptional circumstances':
“[T]he prevailing circumstances within the former Yugoslavia cannot by themselves amount to exceptional circumstances … [T]o be exceptional, the circumstances must therefore go beyond what has been, since before the Tribunal was established”.
It also emphasised that there can be no blanket anonymity, as this would presume that every witness is “in danger or at risk” (as Rule 69(A) describes them), or “vulnerable”. The Chamber set out three criteria for deciding whether delayed disclosure requests under Rule 69(A) should be granted. These criteria were cited with approval in Prosecutor v Stanišić and Simatović; and again in Prosecutor v Perišić:
“the likelihood that Prosecution witness will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not to the public,
the distinction which must be drawn between measures to protect individual victims and witnesses in the particular trial, which are permissible under the Rules, and measures which simply make it easier for the Prosecution to bring cases against other persons in the future, which are not, and
the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused”.
In Perišić, the Chamber concluded that the Prosecutor must give the defence a reasonable time to properly prepare for cross-examination and found this to be no later than 30 days before the trial – consistent with the general practice of the Chamber.
The ICTY has made a marked move in its jurisprudence away from total anonymity from the accused. However, this does not necessarily mean that this extreme remedy is a “dead letter”. Rather, the prospect of anonymity continues with every war crimes prosecution, given the “unusual dangers” faced by witnesses and the “limited ability” to protect them.
Further, although anonymity has not yet been a key issue in the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina, there is greater potential for it to arise at the WCC and at other war crimes trials in the country. It could be argued that the ‘unusual dangers' and ‘limited ability to protect' are more pronounced in war crimes trials in BiH. As such, two of the determining factors in the majority judgment in Tadić - “exceptional circumstances” and the absence of a witness protection programme could re-emerge in these trials.
Regarding ‘exceptional circumstances', an OSCE report from 2005 describes the way in which the situation has changed for many witnesses in the context of refugee and displaced person return:
“Many witnesses now live in an environment different to the one in which they originally gave evidence to the police or prosecutors. Many gave statements to judges, police and prosecutors of their own ethnicity shortly after the event or after the war. In may cases, the same people then moved abroad or to a community in BiH dominated by members of their own ethnic group. They did not foresee the time when the suspect or the suspect's family would become their neighbour once more or that they would be living in neighbouring communities with full and unchecked freedom of movement … Feedback from OSCE trial monitors indicates that, especially in cases where defendants are powerful political figures or businessmen, ordinary citizens feel intimidated to act as witnesses.”
The report notes further the difficulties that prosecutors' offices face in getting witnesses to come to court, particularly returnees whose families are living in the entity, canton or village in which they are now a minority. They note that retaliatory measures may go beyond social exclusion and social stigma to more violent actions.
Regarding witness protection programmes, although the War Crimes Chamber has a solid programme in place, challenges remain. These stem from the general concerns related to conducting trials in the location where the crimes occurred; and difficulties with concealing the identity of witnesses in a small country. Of much concern as well is the safety of witnesses giving testimony at war crimes trials at entity and cantonal courts. While protection systems may be sufficient at the state court level, witness protection measures at the sub-state level remain minimal and weak.
Thus, while the jurisprudence of war crimes trials concerning Bosnia and Herzegovina has moved away from granting anonymity, there is still the potential that such measures could become an issue again in future trials.
(ii) Exclusion of the Public
Article 20(4) of the ICTY Statute states that “hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence”. In Tadić, the Chamber recognised this preference for a public hearing; and the benefits of press and public access in helping to ensure a fair trial. However, it added that this requirement had to be “balanced with other mandated interests, such as the duty to protect victims and witnesses”. Rule 75 provides for various measures to shield a witness from the view of the public and/or the accused, including expunging identifying information from public records; image- or voice-altering devices or closed circuit television; or closed sessions. Closed sessions, which exclude the press and public, can be ordered by the Chamber for reasons of safety, security or non-disclosure of the identity of a victim or witness; public order or morality; and the protection of the interests of justice. In addition to protecting victims and witnesses from the public and media, such measures can be beneficial in that they are much less intrusive to the accused than anonymity. They allow for the accused to know the identity of the witness and to fully prepare cross-examination.
Under Bosnian law, there is also a presumption that trials will be public – as specified in Article 234(1) of the Criminal Procedure Code (CPC) of BiH. The CPC also allows for exceptions under Article 235. The public can be excluded at any time during the main trial “if it is to protect the public peace and order, to preserve morality in the democratic society, to protect the personal and intimate life of the accused or the injured or to protect the interest of a minor or a witness”. The Court has allowed a number of closed sessions, under this provision, which has received criticism.
In Prosecutor v Samardžić, the Court recognised that a “public hearing is an essential feature of the right to a fair trial”. However, it decided to allow the Prosecutor's motion to close the main trial to the general public and press in order to protect the interests of the injured parties/witnesses. Many of the witnesses were women who were to testify about rapes and other humiliating treatment, some of who were under-aged at the time. The Court found that testifying about such matters in public is a risk to the personal and intimate life of witnesses; their identity could be deduced from the subject matter of their testimony, even if protective measures such as screen and voice distortion were used. In addition, the Court considered that such testimony in public could be a risk to other victims should the witnesses mention their names during the proceedings.
In Prosecutor v Stanković, the Court decided pursuant to Article 235 to close the entire main trial to the public as a rule. Ultimately, some exceptions were made during the Prosecutor's presentation of evidence; and after hearing the witnesses for the Prosecution, the continuation of the main trial was public, except for when discussing protected witnesses. The witnesses in Stanković also testified about a large number of rapes and other humiliating treatment. The decision to close the trial was based on the need to preserve morality and, as in Samardžić, to protect the personal and intimate life of injured parties; and other victims and witnesses. In addition, there were concerns that Stanković would disclose to the public the identities and addresses of the witnesses for the Prosecution, which he had threatened to do before the ICTY.
In both these cases, the Court allowed for representatives of the OSCE and other international institutions to attend the closed sessions, pursuant to Article 236 of the CPC. Still, the broad use of closed sessions has been a concern. A report by Human Rights Watch emphasises that the right to a public trial is one of the fundamental safeguards of criminal procedure and questions the need to exclude the public
Other human rights commentators and NGOs have also critiqued the exclusion of the public and its potential to result in a violation of the interests of the accused. While closed sessions and non-disclosure of witness identities to the public does not threaten the accused's right to cross-examination, the absence of public scrutiny could allow for witnesses to give false or misleading testimony. The importance of public scrutiny of trial testimony is a key reason why the accused's right to a public trial is considered a fundamental safeguard of criminal procedure and fairness. Further, the right to a public hearing is expressly provided for by Article 6 of the European Convention of Human Rights (ECHR).
Article 6 ECHR provides that:
“Everyone charged with a criminal offence has the following minimum rights: to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…”
This provision has been subject to the Strasbourg Court's interpretation on a number of occasions, however the court has not always been consistent in its interpretation. The Law Commission observed that the Strasbourg jurisprudence in this area of the law is “difficult to predict with confidence” and another commentator described the cases as “impossible to reconcile with each other”. While this may be true to a degree there are nevertheless principles which can be extracted from the court's rulings when taken as a whole. Further these principles are applicable to the use of anonymous witnesses in criminal trials. To date however there are no Strasbourg cases on Article 6 (3) which address the use of witness anonymity in war crimes trials.
The arguments both for and against the use of anonymous witnesses in cases involving serious breaches of international human rights law are often of a greater intensity than is normally the case in domestic legal proceedings. This can complicate any prediction as to how the Strasbourg authorities would approach or rule in a case involving war crimes, particularly given the inconsistency in its jurisprudence to date. Nevertheless the basic legal framework of course remains the same.
The Strasbourg court has ruled in a number of cases that the constituent rights in Article 6 are not in themselves absolute and its interpretation is primarily a matter for the national authorities. In Luca v Italy the court held that “The admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.”
Article 6 (3) (d) is expressly focused on the defence right to ask questions or confront witnesses. Witness anonymity will prevent or restrict the defence from challenging a witness's evidence sufficiently, but a number of Strasbourg cases indicate that it is the confrontation rather than the anonymity with which the court is primarily concerned.
In Kostovski v Netherlands the applicant was convicted on the basis of evidence provided by anonymous witnesses and was additionally denied the opportunity to put questions in cross examination. The court held that the defence right to confrontation under Article 6 had been restricted and the anonymity issue had “compounded the difficulties faced by the applicant”. Significantly the court observed:
“If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious”
However the court also made clear that this is not absolute and there can be exceptions even where there has been confrontation:
“These rights require, as a rule, that an accused be given, at some stage in the proceedings, an adequate and proper opportunity to challenge and question a witness against him.”
It is questionable however that, even where there is an opportunity to challenge an anonymous witness, it can be considered ‘adequate and proper' given the difficulties outlined in Kostovski, with which the defence are faced.
The Strasbourg court will also evaluate the weight attached to evidence from anonymous witnesses - and the extent to which a conviction is based on such evidence - in determining whether the defendant's rights under Article 6 (3) are restricted. In Windsch v Austria the court found a violation of Article 6 where the applicant's conviction was based ‘to a large extent' on statements made by anonymous witnesses to the police. Here the court observed that “the right to a fair administration of justice hold so prominent in democratic society that it cannot be sacrificed.”
In Unterpertinger v Austria the court found a violation of Article 6 (3) where the applicant was convicted ‘mainly' on statements of witnesses who did not attend court. This decision is difficult to reconcile with the later ruling in Artner v Austria: in both cases there were absent witnesses with corroborating medical evidence, but in Artner no violation was found. Three dissenting judges in Artner viewed the cases as indistinguishable.
In Luca v Italy the court held that “where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Art.6.”
While the words ‘to a large extent' and ‘mainly' were used in Windsch and Unterpertinger, Luca uses ‘solely or to a decisive degree'. However, in Ludi v Switzerland it was enough that the evidence ‘played a part' in the conviction. In the more recent case of Krasniki v Czech Republic a conviction based solely on the evidence of anonymous witnesses was not considered unsafe, but the court held the need for anonymity must be clearly established. These cases are slightly confusing, leaving the correct position difficult to predict with certainty. What is clear it that the court has made a significant departure from the language used in the text of Article 6 itself, which states very clearly the ‘minimum rights' to which the defendant is entitled.
The Strasbourg court has, however, emphasised that for restrictive measures to be applied, they must be ‘strictly necessary' to be permissible under Article 6. The court will look to strike a balance between competing interests, and in a number of cases has held that where the defendant's rights are limited, this must be strictly necessary and done by the least restrictive means possible to achieve a given aim.
In Ludi v Switzerland the court found the applicant's conviction, based on unchallenged evidence given by anonymous police agents, was disproportionate. It was not their anonymity per se which the court found impermissible, but that the defence had not been given the opportunity to put questions to the witnesses. The court held that “it would have been possible to do this in a way which took into account the legitimate interest of the police authorities in a drug trafficking case in preserving the anonymity of their agent, so that they could protect him and also make use of him again in the future.”
In Saidi v France 1994 the applicant was denied requests to confront anonymous police officers and was convicted under dangerous drugs legislation. The Respondent argued that “the protection of witnesses takes priority and their legitimate interest in remaining anonymous must be protected, so as to strengthen measures to combat drug trafficking”. This argument, clearly having little regard for due process and ‘minimum rights alike, was rightly rejected by the court which held it was “fully aware of the undeniable difficulties of the fight against drug-trafficking—in particular with regard to obtaining and producing evidence—and of the ravages caused to society by the drug problem, but such considerations cannot justify restricting to this extent the rights of the defence of 'everyone charged with a criminal offence.”
Nevertheless in the later case of Van Mechelen v Netherlands the court recognised that there can be special categories of witnesses and the “balancing of the interests of the defence against arguments in favour of maintaining the anonymity of the witnesses raises special problems if the witnesses in question are members of the police force of the state.” Such witnesses interest in remaining anonymous is the court held “to some extent different from that of disinterested witnesses or victims.” Particular regard was given to the preservation of undercover agents and protection of their families.
The court did however reiterate the importance of the right to a fair administration of justice in a democratic society, and that any measures restricting the rights of the defence should be strictly necessary – ‘if a less restrictive measure can suffice then that measure should be applied'. Here the defence was unaware of the identity of the police witnesses and also prevented from direct questioning. The court viewed this was disproportionate and held that “it has not been explained to the Court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered.” A violation of Article 6 was thus found.
Another important issue for which the Strasbourg authorities will have regard when assessing the permissibility of witness anonymity, is the Convention rights of the witnesses themselves.
In Doorson v Netherlands the court found there was sufficient reason to maintain the anonymity of drug addicts giving evidence against drug dealers and reasoned that “drug dealers frequently resorted to threats and actual violence against persons who gave evidence against them”. Significantly the court observed that:
“It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”
Although the court accepted that the anonymity of the witnesses “presented the defence with difficulties which criminal proceedings should not normally involve…” it held that “nevertheless, no violation of Article 6 (1) taken together with Article 6 (3) (d) of the Convention can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities.” Here the court found that the questioning of the anonymous witnesses “at the appeals stage in the presence of counsel by an investigating judge who was aware of their identity” was a sufficient counterbalancing procedure.
Although there are no Strasbourg authorities which regard the use of anonymity in war crimes trials, ECHR compatibility of witness anonymity was assessed in this context by the ICTY in Prosecutor v Tadić.
The court in Tadić evaluated and distinguished the Kostovski decision which the court viewed as “not directly on point, as it does not relate to the testimony of unidentified witnesses who will be present in court, whose evidence will be subject to cross-examination, and whose demeanour is being observed by the Judges of the Trial Chamber.”
The court found that Kostovski does provide that “procedural safeguards can be adopted to ensure that a fair trial takes place when the identity of the witness is not disclosed to the accused.” The following guidelines were said by the court to achieve this purpose:
“Firstly, the Judges must be able to observe the demeanour of the witness, in order to assess the reliability of the testimony. Secondly, the Judges must be aware of the identity of the witness, in order to test the reliability of the witness. Thirdly, the defence must be allowed ample opportunity to question the witness on issues unrelated to his or her identity or current whereabouts, such as how the witness was able to obtain the incriminating information but still excluding information that would make the true name traceable. The release of nicknames used in the camps clearly falls into this latter category and the majority of the Trial Chamber will therefore not allow the release of this information concerning witnesses who have been granted anonymity without the express consent of these witnesses. Finally, the identity of the witness must be released when there are no longer reasons to fear for the security of the witness.”
The court also attempted to distinguish trials in a war crimes context:
“The interpretations of Article 6 of the ECHR by the European Court of Human Rights are meant to apply to ordinary criminal and, for Article 6 (1), civil adjudications. By contrast, the International Tribunal is adjudicating crimes which are considered so horrific as to warrant universal jurisdiction. The International Tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence.”
Dissenting Judge Stephen disagreed strongly and could not so distinguish Kostovski which he regarded as “clear guidance as to what are internationally recognised standards regarding the rights of the accused.” It may perhaps be seen as some what odd that the majority in Tadić clearly felt that ‘internationally recognised standards' do not apply to their international tribunal.
It was however the Kostovski case which spelled out the danger of allowing witnesses anonymity most clearly where it stated that “testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility.” The ICTY in Tadić would have been well advised to have noted this more carefully. The danger of granting anonymity were, as Geoffrey Robertson QC points out, “dramatically illustrated from the Tadić trial itself by the perjury of Witness L”.
Witness L had been employed as a guard at Trnepolje camp in which capacity he committed serious crimes for which he has been convicted by a court in Bosnia and Herzegovina. He was made available by the Bosnian authorities to give evidence for the prosecution in Tadić and was afforded anonymity and the pseudonym Witness L. He gave evidence of Tadić's involvement in 12 rapes and 30 murders, including the murder of Witness L's own father, whom is saw murdered with his own eyes. In cross examination the defence asked ‘but isn't your father still alive?' and then proceeded to produce an old man who ‘rushed in and embraced' the witness. The prosecution ‘sheepishly' asked the court to disregard the entire of Witness L's evidence. The lessons to be learned from this are clear.
(ii) Exclusion of the Public
Article 6 (1) ECHR provides that “in determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing…”
The Strasbourg court has held this aspect as a “fundamental guarantee” the purpose of which was made clear in Werner v Austria where the court said this:
“…the public character of proceedings before judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.”
The publicity requirement will apply to both civil and criminal proceedings, at trial court level. The Strasbourg authorities have also held that the right to a public hearing will apply to any phase in the proceedings; however “in applying the publicity requirement…account must be taken of the entirety of the proceedings in the domestic legal order”
There are however extensive limitations on the right to a public hearing provided by the text of Article 6 itself where it says this:
“the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Any limitation of the right to a public hearing under Article 6 must be made on one of the grounds set out above. The provision also provides the need for a balance or test of proportionality. However unlike other Convention Articles, the words ‘necessary in a democratic society' are absent. This is significant because it is these words which have been often cited by the Strasbourg court in leaving to contracting states a ‘margin of appreciation' when interpreting Convention rights restrictively.
There are no cases in which the court has adopted the margin of appreciation doctrine in respect of the right to a public hearing under Article 6 (1). However it has been noted that a similar concept nevertheless applies and “the wording of the ‘interests of justice restriction, in the opinion of the court clearly involves a margin of appreciation approach.” To that end the restrictions on the right to a public hearing exist not only in the Article 6 text, but the court's jurisprudence restricts the right further and has “diluted the Convention guarantee”.
The exclusion of the public was considered permissible on the grounds of ‘public order' and the court had regard to the issue of proportionality, in Campbell and Fell v UK. Here the Respondent argued that there was a necessity to hold prison disciplinary hearings in camera due to security problems in either allowing the public access to, or transporting prisoner from, the prison precincts. The court held that the imposition of public hearings “would impose a disproportionate burden on the authorities of the state” and proceedings in camera were thus justified “for reasons of public order and security”.
In X v UK the Irish applicant was convicted of the terrorist murder of two British soldiers in Belfast. The screening of witnesses from the public was held permissible on ‘public order' grounds and the Commission observed that “the interference with the right to publicity was kept to a minimum by the fact that the public was not excluded from the proceedings and could hear all the questions put to and answers given by the witnesses…The screening was in the interests of public order or national security and to the extent strictly required in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.
In a number of cases the Strasbourg authorities have upheld restriction on the right to a public hearing on the basis of protecting ‘the interests of the parties'. Trials in camera have been upheld in medical disciplinary proceedings in order to protect the ‘private life of the parties' which presumably means the patients, although in Diennett v France the court held that “such an occurrence must be strictly required by the circumstances”.
In B v UK the court held the exclusion of the public was justified in divorce proceedings “in the interests of justice and to ensure that the privacy of children is protected.” It may of course be argued that in criminal proceedings a higher threshold should be applied. However the court made clear that “even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice”. Such an occasion arose in X v Austria where the exclusion of the public in criminal proceedings involving sexual offences against minors was permitted under Article 6 (1). Presumably this was done on the Article 6 (1) grounds of in the ‘interests of juveniles' although the court did not specify as to which restriction it was applying.
It has been argued that the importance of a public hearing is even more pronounced in the context of war crimes and violations of human rights law, although as with anonymity it is not an issue that the Strasbourg court has addressed. Further, the Strasbourg authorities regard not so much the seriousness of a given crime, but look more to the grounds on which a restriction is made, and to that end whether Article 6 (1) applies. The court in Gautrin held that where none of the restrictions apply, no violation will be found.
ECHR compatibility with the exclusion of the public in a war crimes context has however been considered on a number of occasions by the Bosnian State Court. Bosnia & Herzegovina has signed, ratified and is bound by the ECHR.
As discussed above, the Bosnian court has adopted a broad use of exclusion of the public and media from trial proceedings. In Samardžić and Stanković, proceedings were held “almost entirely in closed session”.
The court in Stanković excluded the public on the grounds of ‘the protection of the private life of the parties' which is of course one of the restrictions under Article 6 (1). The court of First Instance said this:
“in the opinion of the Panel [exclusion of the public] was necessary to preserve morality and protect the personal and intimate life of the injured parties and the interests of the witnesses, given that these are witnesses who should testify in respect to a great number of rapes and other humiliating proceedings, which might appear to tarnish their reputation and damage family life, that majority of them were very young at the time of the commission of the criminal offense who, in the meantime founded their families and have now personal and family life. Testifying in public about such delicate and sensitive matters, even with certain measures of protection, in the opinion of the court, always presents a risk for private and personal lives of the witnesses – victims, because in a small community a not controlled small detail of the story might be enough to reveal the identity of the protected witnesses.”
On appeal the Appellate Panel found the First Instance Panel “took into account the need to strike a balance between the rights of the accused to a public trial and the protection of morality and interests of the witnesses…” On that basis the court found the test had been “correctly and fully applied”.
Although applying a restriction expressly provided by the text of Article 6 (1), in neither ruling did the court give any detailed assessment of the Strasbourg authorities discussed above. Instead it appeared to be relying on the text in Article 6 (1) itself. This is not wrong and does not in itself render the decisions in any way unreliable; however many of the Strasbourg cases include powerful statements as to the high level of importance to which the right to a public hearing is held.
It may be argued that such consideration was missed by the Bosnian court and it has been pointed out that the necessity of applying such restrictive measures is questionable. In Janković; - a case decided less than a year after Stanković and also involving serious breaches of human rights law the proceedings were conducted “almost entirely in open session”. Significantly some of the witnesses giving evidence also testified in the Samardžić and Stanković cases, under protective status. This raises the question as to how necessary it can really have been to exclude the public from the entire of the proceedings ‘as a rule' in Stanković, if it was not strictly necessary less than a year later in Janković.
The court in Stanković did appear to consider the application of less restrictive measures, but concluded that the risk to the witnesses would remain ‘even with certain measures of protection'. The court did not state what measures it had in mind.
To the courts credit, as noted above, measures to protect the accused when the public was excluded were put in place - trial monitors and representatives from the OSCE were present throughout.
Nevertheless the removal of the public from the entire proceedings in a serious criminal trial is an extreme measure. The Strasbourg court has upheld restrictions where the risk to the witnesses on the face of it appears less than to those giving evidence in Stanković, and where the restriction specified under Article 6 (1) has been the same. However for the removal of the public to be permitted under Article 6 (1) it is likely the Strasbourg court would require the highest levels of necessity given the extensive restrictions applied.
The Broader Purpose Of War Crimes Trials
The use of anonymity and closed sessions at the ICTY and the War Crimes Chamber have been controversial because of their impact on the rights of the accused. However, in the case of war crimes trials and the prosecution of extreme violations of human rights, the debate takes on broader dimensions. The debate concerns not only the rights of the accused, but special considerations for victims and the impact of such trials on the wider community in post-conflict societies. It raises the question of what the predominant purpose of such trials is.
If the purpose is determining the guilt or innocence of those accused of war crimes, crimes against humanity and/or genocide, then the same arguments made concerning the rights of the accused are valid. The ability of the accused to effectively cross-examine witnesses and put forth an informed defence; and public scrutiny of testimony, contribute to ascertaining the truth and assessing innocence or guilt to the level of certainty required.
If the purpose is to ameliorate suffering and to contribute to the healing process for victims/witnesses, efforts must be made to minimise any trauma and insecurity associated with testifying. In Tadić, the Trial Chamber emphasised that standards designed to apply to “ordinary criminal and … civil adjudications” were not appropriate for adjudicating crimes “so horrific as to warrant universal jurisdiction”. As discussed above, the drafters of the ICTY Statute also seem to have recognised the unique nature of such crimes by imposing a positive obligation to provide protection to victims and witnesses in Article 21(2) and Article 22. Failure to protect witnesses from trauma and to ensure their safety through appropriate protection measures would undercut the purpose described here. Such measures could arguably involve non-disclosure of their identity to the public, and in extreme cases, to the accused. Failure to protect witnesses could also result in the unwillingness of witnesses to testify, which in turn, could prevent the prosecution of those accused. This would undercut the purpose of determining the guilt of innocence of alleged perpetrators.
If the purpose is to establish a historical record of the war and to educate, the unwillingness of witnesses to tell their experiences due to insufficient protection would also undercut this purpose. However, some witness protection measures could also undermine the establishment of such a record. Non-disclosure of witness identities to the accused and lack of public scrutiny of witness testimony, as discussed, can impede truth gathering and the development of an accurate historical record. In addition, closed sessions impede the development of public knowledge, education and understanding. Further, trial transcripts and judgments filled with redactions and pseudonyms create an unclear and incomplete record of events.
If the purpose is to establish rule of law and confidence in the judicial system, then the trials and the institutions in which they are conducted must be deemed legitimate. Anonymity and concerns about the rights of the accused undermine confidence in the system and the belief that justice is being done. In addition, broad use of closed sessions can negatively impact public perception. Public and transparent proceedings contribute to confidence in the system and allow the public to assess whether the trial is in fact objective and fair; and knowledge of a witness' identity gives more legitimacy to the specific trial. For example the trial of General Blaškić was of great public interest in Croatia and was reported throughout the country. The use of anonymous witnesses would have raised public criticism of the trial. Public confidence in the criminal justice system and the legitimacy of justice institutions is especially important in post-conflict societies, such as Bosnia and Herzegovina, because of the acknowledged deficiencies in the justice system during the war and immediately after. The War Crimes Chamber was created in part to address these deficiencies and contribute to rule of law in BiH.
Ultimately, to be considered legitimate, war crimes trials must comply with international law. The various aims of such trials and the particular contexts in which they are conducted must be given necessary attention, but within the framework of established international standards.
The balance between the interests of victims and the rights of the accused is a difficult one to strike. The arguments in favour of applying restrictive measures to protect victims and witnesses are strong and often compelling. This is compounded by the issues which arise in Bosnian war crimes trials. The ferocity of the conflict and brutality of the acts committed has made the situation particularly difficult. Many of the crimes have been of a sexual nature. The size of the country and close proximity of its communities makes the need to protect the victims an especially sensitive and particularly important task.
However the defendant's right to a fair trial is one of the corner stones of justice in a democratic society. It is an historic right which has never been subordinate to the issue of protecting witnesses. As the Strasbourg court has made clear “the right to a fair administration of justice holds so prominent in democratic society that it cannot be sacrificed.”
For a fair balance to be found due weight must be given to each side, without compromising the other. The ICTY and WCC have not always struck this balance. Arguably both courts have overly compensated in protecting the interests of victims and have adversely impacted the rights of the accused.
A common theme where the courts have failed to strike an appropriate balance is that significant weight is placed on protecting the victims/witnesses and insufficient regard is had to the rights of the accused. Arguments that war crimes are unique and exceptional situations are relied on heavily in justifying departure from ordinary standards of due process. War crimes trials are unique and exceptional, but just as this is an argument that special consideration should be given to victims/witnesses, so it requires that standards of due process and the right to a fair trial are heightened in their importance also. Where this is forgotten a fair balance will not be found.
The balance is therefore more acute in cases involving serious breaches of international humanitarian law. Due process and the rule of law are corner stones of democratic societies and it is even more important to get it right.
The Strasbourg court has principally held that although defence rights may be limited in certain situations this must be strictly necessary and done by the least restrictive means possible. These principles are not easily detected in the rulings discussed above in Tadić and Stanković. Although both the ICTY and WCC have shown a shift towards a more proportionate approach to the competing rights of victims and defendants, there is a clear potential for further conflict to arise. The words ‘strictly necessary' and by the ‘least restrictive means' possible' should be evaluated with great care and narrowly applied.