Criminal Law Forum

1996

International Tribunal for the Former Yugoslavia

 *179 AMICUS CURIAE BRIEF ON PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES,

SUBMITTED BY DEAN AND PROFESSOR OF LAW CHRISTINE CHINKIN [FNa]

Copyright ©  1996 by the Rutgers University School of Law, Camden, New Jersey

  International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

PROSECUTOR V. DUSKO TADIC A/K/A "DULE" Case No. IT-94-1-T (10 August 1995)

 [FNaa]

  IN THE TRIAL CHAMBER, Before Judge McDonald, Presiding; Judge Stephen; Judge Vohrah

INTRODUCTION

  The author of this brief, Christine Chinkin, Dean and Professor of International Law, University of Southampton, United Kingdom, thanks the Tribunal for granting leave to file a written brief as an amicus curiae under Rule 74, Rules of Procedure and Evidence, [FN1] in the case of Prosecutor v. Dusko Tadic on the issue of anonymity of witnesses.

*180 PROSECUTION SUBMISSION

  On 18 May 1995, the Prosecutor requested the Trial Chamber to issue orders in the case of Prosecutor v. Dusko Tadic for specific protective measures for certain witnesses and to issue general protective measures for victims of the conflict in the former Yugoslavia. The prosecution has provided evidence on the particular facts for each application. This brief will not attempt to duplicate this information as the author has had no contact with the witnesses. It will present legal and policy arguments for supporting claims of non-disclosure to the public and of anonymity from the accused.

I. SUMMARY OF AMICUS CURIAE SUBMISSION

   It is submitted in this amicus curiae brief that the Tribunal should give every attention, on the merits of each individual case, to preserving the anonymity of witnesses for as long as possible throughout the criminal process. That is, the Tribunal should consider any witness's application for anonymity in the light of previously considered principles. This is especially, but not exclusively, applicable to survivors of sexual assault.

   The anonymity of witnesses can be preserved to varying degrees:

    a. Not at all, that is, through publication of witnesses' names in the indictment and all public documentation. This would include publication of names of witnesses by the media.

    b. In the media and in public documentation, through preservation of confidentiality. Those formally involved in the trial would have access to the identity of witnesses but this information (including means of identification such as photographs or sketches of witnesses in or outside the courtroom) would be removed from all public records and prohibited in all forms of media publication.

    c. From the accused, through preservation of anonymity. The accused would have access to neither the names nor any other identifying features of witnesses. Court officials, including the Judges of the Tribunal, would have this information. The question of anonymity from the accused's legal representatives would require separate consideration.

   *181 Confidentiality or anonymity of witnesses can be protected through different stages of the criminal justice process:

    a. Investigations up to and including indictment.

    b. Pre-trial period up until a specified period before trial to allow for the defendant to prepare his defense.

    c. Throughout and subsequent to the trial.

   It is recognized that in all instances the right of the accused to a fair trial has to be guaranteed as specified in the Statute of the Tribunal (Art. 21). The right to a fair trial is included in major human rights treaties, notably the European Convention on Human Rights and Fundamental Freedoms (Art. 6, 1950); the International Covenant on Civil and Political Rights (Art. 14, 1966); and the American Convention on Human Rights (Art. 8, 1969).

   The Security Council has determined that the situation in the former Yugoslavia constitutes a threat to international peace and security and has established the Tribunal to give effect to its determination to "put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them" (S.C. Res. 808, preamble, 22 Feb. 1993). The Tribunal is a signal to the international community of the unacceptableness under international law of atrocities committed during armed conflict. The Tribunal must balance these objectives with the need to be seen to uphold internationally accepted norms and customs in its conduct of proceedings. In order to avoid any taint on its processes, justice must be seen to be done in accordance with international standards of human rights guarantees.

   Fundamental tenets of a fair trial generally include a public hearing in which the accused has the opportunity "to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him" (International Covenant on Civil and Political Rights, Art. 14(e); European Convention on Human Rights, Art. 6(3)(d); American Convention on Human Rights, Art. 8(2)(f)). This language is replicated in the Statute of the Tribunal (Art. 21(4)(e)).

   The Statute of the Tribunal recognizes that the right of accused persons to a fair trial must be balanced against other rights. Article 20(1) requires "full respect for the rights of the accused and due regard for the protection of victims and witnesses." Article 22 states that the Rules of Procedure and Evidence shall provide for the protection of victims and *182 witnesses, including but not limited to, in camera proceedings and protection of the identity of victims. The Secretary-General of the United Nations has stated that this protection should be provided "especially in cases of rape or sexual assault" (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶  108, U.N. Doc. S/25704 (1993)).

   Measures for the protection of witnesses are provided by Rules 69 and 75. The question that this brief addresses is how to balance the rights of the accused to a fair trial against those of the victims to security, safety, and privacy. It is not just a matter of balancing the rights of private individuals (the accused and the victims) but of vindicating the public interest in the fair administration, of justice and bringing accused persons to judgment. In domestic systems the criminal law is upheld by the State in fulfillment of its duty to maintain internal peace and security. Criminal prosecutions are in the name of the State. Indeed, "[i]f the State fails to act it becomes an agent of persecution" (Australian Law Reform Commission, Report No. 69, Part I, Equality before the Law: Justice for Women 250 (1994)).

   In turn, citizens against whom crimes are committed have a duty to give evidence so that a criminal charge can be brought by the State and the guilty punished. The Security Council, on behalf of the international community, has determined that the Tribunal "shall have primacy over national courts" (Statute of the Tribunal, Art. 9(2)). The prosecutions are brought on behalf of the international community in order to uphold international peace and security. The interests of the international community in seeing those accused of violations of international humanitarian law, violations of human rights standards, and war crimes brought to trial and of ensuring that those accused are tried in accordance with human rights norms must therefore also be balanced.

II. NON-DISCLOSURE OF WITNESSES TO THE PUBLIC AND THE MEDIA

   Considering the rights of the accused and of the witnesses, the defense in the case of Prosecutor v. Dusko Tadic is prepared to accept non-disclosure to the public and the media of the names of the persons given pseudonyms by the Prosecutor's office. Nevertheless, it is important to outline the arguments in favor of non-disclosure to the public and media as these form the basis for further claims of non-disclosure.

 *183 II.1 Non-disclosure of the Identity of Witnesses to the Public Is Compatible with the Rules of the Tribunal

  The Statute of the Tribunal states that "hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence" (Art. 20(4)). Rule 34(A) authorizes the Registrar to set up a Victims and Witnesses Unit to recommend protective measures for victims and witnesses. This gives effect to the Statute of the Tribunal, Article 22 of which states that protective measures "shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity."

   There are thus two aspects to non-disclosure of witnesses' identity from the public: in camera proceedings and prohibition of publication of witnesses' names and other identifying features in public documentation.

   Although these measures are distinct, their common objective of providing protection to a complainant means that they are sometimes considered together, especially where special provisions of taking evidence are considered.

   Rule 79 authorizes the Trial Chamber to order that the press and public be excluded from all or part of the proceedings for reasons of

    (i) public order or morality;

    (ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or

    (iii) the protection of the interests of justice.

   In the situation of continuing armed conflict, where there is the fear of harm to witnesses and their families consequent to giving evidence, non-disclosure to the public can be justified under (ii) and (iii). As explained above, protection of witnesses and thereby encouraging reporting and prosecution of offenses is in the interests of justice, as well as those of the complainant.

   Rule 75 authorizes a Judge or Chamber to order "appropriate measures for the privacy and protection of victims and witnesses," including measures to preserve confidentiality as to identity and whereabouts. These are not limited to measures within the trial itself and could include prohibitions on photographs or sketches of witnesses whilst in the Hague for the proceedings. Hearings to determine such orders may be held in camera *184 (Rule 75(B)). To hold such hearings in public could undermine the effect of any orders made.

 II.2 Non-disclosure of the Identity of Witnesses to the Public Is Compatible with Established Principles of Criminal Procedure in Domestic Courts

   There has been comparatively recent acceptance of non-disclosure of the names of complainants in rape cases in the domestic criminal process of a number of States. The International Tribunal is not bound by procedural principles of any domestic law. However, where there are no rules of international law, guidance can be sought from the general principles of law from domestic systems. The International Court of Justice is expressly authorized to do this (Statute of the International Court of Justice, Art. 38(1)(c)), and there seems no reason why the same approach should not be applicable to the Tribunal. This is especially so since domestic criminal process was drawn upon in the drafting of the Rules of Procedure and Evidence. Further, since the Tribunal has been established with concurrent jurisdiction with national courts (Statute of the Tribunal, Art. 9(1)), its procedures should be comparable to those of domestic tribunals.

   The need to show special consideration to women complaining of rape and sexual assault has been increasingly recognized in the domestic law of some States. There is a trend away from treating such witnesses as especially unreliable (for example, through earlier requirements for corroboration; willingness to allow evidence of past sexual history) to regarding such witnesses as in need of special protection, which it is in the interests of the State to provide. The Rules of Procedure and Evidence build upon this trend in Rule 96, which provides:

    (i) no corroboration of the victim's testimony shall be required;

    (ii) consent shall not be allowed as a defence if the victim

      (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or

      (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;

      *185 (iii) before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;

      (iv) prior sexual conduct of the victim shall not be admitted in evidence.

 Non-disclosure of complainants' names protects victims from the glare of publicity and encourages victims to report offenses and to give evidence (J. Temkin, Rape and the Legal Process 190-98 (1987)). Publicity may also encourage witnesses to leave out full details of what occurred, leaving the court with partial evidence while believing it to be complete.

   The reasons for special protection of survivors of sexual assault have been well documented and can be briefly summarized. Rape is seen as the "ultimate violation of self" (Florida Star v. B.J.F., 491 U.S. 524, 542-43 (1989) (White, J.)). It has consequences not shared by any other crime. The brutal and terrifying attack can have long-term, even permanent, detrimental effects upon the survivor's life (see further J. Becker et al., The Effects of Sexual Assault on Rape and Attempted Rape Victims, 7 Victimology 106 (1982); A. Burgess & L. Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981 (1974)). This applies as much to male victims of rape and sexual assault as to women.

   The culture and environment of criminal proceedings can be especially intimidating for survivors of sexual assault. A victim of rape is often stigmatized as though her behavior were wrong. These witnesses must provide intimate details of what was done to them that are humiliating and degrading. Some women may come from cultures where sexual matters are not openly discussed, and certainly not in front of males and in open court. Witnesses who are identified may be vulnerable to rejection from within their own community, as well as to hostility from the defendant, his family, or associates. Survivors may have maintained silence within their own families and communities about what has occurred, feeling ashamed and unable to risk isolation. They may feel that speaking out could impact upon their standing and marriageability within their own community, or in a new community to which they have relocated. In some Muslim communities, for example, virginity is regarded as a pre-requisite for marriage. "Severe traumatization, feelings of guilt and shame are accompanied by the fear of rejection by husband or family and by the fear of reprisals against themselves and their families" (Preliminary Report on Violence against Women, Its Causes, *186 and Consequences, Submitted by the Special Rapporteur, Radhika Coomaraswamy, in Accordance with Commission on Human Rights Resolution 1994/45, ¶  281, U.N. Doc. E/CN.4/1995/42 (1994) [hereinafter Preliminary Report]). It is also worth emphasizing that the publicity attendant upon the trial can also be felt by the accused as cruel.

   Many of these factors have been listed by the prosecution as applicable to its witnesses, notably F, who has not revealed the offenses to her family and has established herself in a new community; [FN2] G, who has "manifested extreme anxiety"; and I, who has been "extremely traumatized." These reactions are all recognized consequences of sexual assault.

II.3 Examples from Domestic Legal Systems

A. UNITED KINGDOM

  In the United Kingdom, the Sexual Offences (Amendment) Act, 1976, §  4, prohibits any written publication or broadcast in England or Wales of the victim's name, address, or any other matter likely to lead members of the public to identify a woman as the complainant except at the direction of the court.

B. CANADA

  Canadian Criminal Code §  442(3) guarantees anonymity from the public upon application to the court.

*187 C. UNITED STATES

  In the United States the constitutional guarantee of free speech in the First Amendment places great importance on the right of public disclosure. Recognizing that this conflicts with the privacy rights of the witness, in practice the "great majority of news organizations in the country do not publish the names of alleged rape victims" (D.W. Denno, Perspectives on Disclosing Rape Victims' Names, 61 Fordham L. Rev. 1113, 1113 (1993)).

  Several states, including Florida (Fla. Stat. §  794.03 (1987)), Georgia  (Ga. Code Ann. §  16-6-23 (1996)), and South Carolina (S.C. Code Ann. §  16-3-730 (1993)), have statutory prohibitions on disclosure by the media.  [FN3] In Florida Star v. B.J.F. (491 U.S. 524 (1989)), although the ruling favored the newspaper which had disclosed the victim's name, contrary to the provisions of the Florida statute, the Supreme Court appeared to recognize an important State interest in protecting victims of sexual offenses from disclosure of their names to the public (Denno, supra, at 1123, n.85; P. Marcus & T. McMahon, Limiting Disclosure of Rape Victims' Identities, 64 S. Cal. L. Rev. 1020 (1991)).

D. AUSTRALIA

  In some instances the issue of confidentiality of a complainant's identity is merged with the related questions of confidentiality, previous sexual history, concern about courtroom intimidation, and measures of protection. For example, in Australia, the Evidence Act, 1929 (S. Austl.), designates complainants of sexual offenses as "vulnerable witnesses." When such a witness is to testify, the court should decide whether to make an order "to make special arrangements for taking evidence . . . in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom." Appropriate measures include evidence given by closed-circuit television or from behind screens (§  13(2)(a)-(b)).

  Similarly, the Evidence Act (Amendment) Act, 1989 (Queensland), includes as a "special witness" a person who, in the court's opinion, "[§  21A(1)(b)] (ii) would be likely to suffer severe emotional trauma; or (iii) *188 would be likely to be so intimidated as to be disadvantaged as a witness" if required to give evidence in accordance with the usual rules of evidence of the court. Special arrangements can be made for the giving of evidence, including exclusion of the public from the court; exclusion of the defendant (and other named persons) from the court; and admission of videotaped instead of direct testimony.

  The bringing together of these issues exemplifies the way in which the traditional view of complainants in sexual assault cases has been reversed and the public interest in the need for their protection is now accepted in some domestic jurisdictions. This argument is further developed below in the discussion of non-disclosure of identity to the accused.

II.4 Non-disclosure of the Identity of Witnesses to the Public Is Compatible with International Standards for a Fair Trial

  It is accepted that a "fair and public hearing" is a component of the right to a fair trial (European Convention on Human Rights, Art. 6(1); International Covenant on Civil and Political Rights, Art. 14(1)). However, the human rights treaties recognize exceptions to this principle. Article 6(1) of the European Convention on Human Rights states:

    [T]he 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 (cf. International Covenant on Civil and Political Rights, Art. 14(1)).

  Admittedly, victim protection is not explicitly included in this list, although the private lives of the parties are. Article 6 stipulates the standards of a fair trial in a national court. Therefore, public order and national security provide the basis for exceptions. The Tribunal is an international court so the corollary concerns are international order and security, which are the very reasons for its establishment.

  If it is accepted that it is in the public interest for witnesses to give evidence without fear of intimidation or repercussions to ensure the proper administration of justice, then the final exception is satisfied.

*189 III. NON-DISCLOSURE OF WITNESSES TO THE ACCUSED

   The prosecution has not sought anonymity for protected witnesses throughout the entire criminal process but only up to one month before trial to allow the defense to prepare for trial. [FN4] It is submitted in this amicus brief that anonymity can be justified right through the trial process to provide adequate protection for witnesses. If the Tribunal accepts this, it is evident that applications for shorter periods can also be supported. If it does not accept the need for total anonymity, then these arguments support its preservation for as long as is possible.

 III.1 Non-disclosure of the Identity of Witnesses to the Accused Is Compatible with the Rules of the Tribunal

   In domestic courts concern is not infrequently expressed as to whether it is within the inherent power of the particular tribunal to order non-disclosure of the witness's identity to the accused. It is submitted that this problem does not arise with the International Tribunal and that it is competent by the terms of its Statute and Rules of Procedure and Evidence to order non-disclosure of the identity of witnesses who have sought this protection.

   Under the Rules of Procedure and Evidence of the Tribunal, Rule 39(ii) allows for the taking of special measures at the investigation stage "to provide for the safety of potential witnesses and informants."

   Rules 66-68, in Section 3 on Production of Evidence, provide for disclosure of evidence (including names of witnesses) to the accused to allow for preparation of trial. However, non-disclosure of certain aspects of the prosecution's case is also provided for by the Rules of Procedure and Evidence of the Tribunal.

   Rule 53(A) provides for non-disclosure of an indictment to the public until after service on the accused. Rule 53(B) provides for non-disclosure of all or part of an indictment, document, or information if the Judge or Trial Chamber considers such a step is "in the interests of justice."

   Rule 69(A) allows in "exceptional circumstances" for the "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 *190 protection of the Tribunal."

   The immediately preceding Rules (66, 67, and 68) are explicitly directed to production of evidence to the accused. It is submitted that Rule 69 is also directed at the accused, an interpretation that is supported by the express purpose of Rule 69(B) ("preparation of the defence") and by the requirement of "exceptional circumstances," which are not demanded for non-disclosure to the public under Rule 75(A).

   Rule 69(B) is made explicitly dependent upon Rule 75. Rule 75 provides for the protection of victims and witnesses during proceedings before the Trial Chambers. Since Rule 69(B) requires timely disclosure to the defense for the preparation for trial and Rule 75 applies to proceedings before a Trial Chamber, the reference to Rule 75 in Rule 69 must mean that no disclosure at all can also be ordered. Rule 75 is dependent upon measures for the privacy and protection of witnesses being consistent with the rights of the accused, thereby incorporating Article 21 of the Statute of the Tribunal. The Tribunal must therefore balance the rights of the accused to a fair trial against the need for measures of protection for witnesses.

   It is submitted that "exceptional circumstances" are satisfied by the same factors as those that have persuaded domestic courts to find the balance in favor of anonymity for witnesses rather than the right of the defendant to confront his accusers: a reasonable fear of severe physical harm to one's self or family; an unwillingness to testify without protection; and possession of essential evidence for the prosecution case. These are discussed in more detail below. The Rules of Procedure and Evidence were drafted to cover a number of different violations of international humanitarian law, not just sexual assault cases. The particular adverse consequences of sexual assault may also be regarded as "exceptional circumstances," especially when rape has been committed systematically, upon a massive scale, and the State has been unable to provide protection.

   The protection under Rule 69 is to extend anonymity until a person is brought "under the protection of the Tribunal." It is submitted that the protection of the Tribunal can last for only a very short time, that is, while the person is physically present before it, and possibly throughout the period at the Hague. This is likely to cover only attendance at the proceedings for the purpose of testifying. The Tribunal has no legal enforcement authority within the territory of States and no practical means of implementing any measures for the safety of witnesses and their families elsewhere in Europe, or further afield. This is especially true within areas of the former Yugoslavia where conflict is ongoing. The Victims and Witnesses Unit established *191 under Rule 34 has only recommendatory powers with respect to protection and provision of counselling and support. It does not (and cannot) place victims and witnesses under its long-term protection. Since the Tribunal cannot maintain a person under its protection after the conclusion of the trial, the qualification in Rule 69 can never be satisfied.

   In contrast, States have the means to provide adequate protection to witnesses. Law enforcement agencies can provide surveillance and protection. Witness relocation programs, change of identity, and long-term protection can be provided when it is in the interest of the State to do so. Although the Tribunal has been established to substitute for national criminal proceedings, it does not possess the legal competence, facilities, or resources to provide similar protection. Therefore, there is a greater burden upon it to provide protection to witnesses through its procedures.

   The Tribunal's own credibility and the Security Council's objective in establishing the Tribunal will both be severely undermined by harm occurring to those who testify before the Tribunal, or by refusals to testify through fear of harm.

III.2 Non-disclosure of the Identity of Witnesses to the Accused Is Compatible with Principles in Certain Domestic Courts

  The International Tribunal can draw by analogy from principles of criminal procedure applied in domestic tribunals which have had to determine whether it is ever consonant with a fair trial for the accused not to know the identity of witnesses for the prosecution. It must be stated at the outset that the preference in all criminal trials is for openness in public proceedings and for the accused to be able to prepare his or her defense in full knowledge of the identity of prosecution witnesses. According to the New Zealand High Court, neither the courts nor the legislature should lightly interfere with the basic right of the accused to know the true identity of his accuser (R. v. Hughes, [1986] 2 N.Z.L.R. 129).

  Nevertheless, this principle does not mean there can be no exceptions. "The law is bound to recognise at least some exceptional cases where the courts can hear the evidence of absent witnesses, because if it did not, criminal justice would be paralysed in the face of some of the most dangerous criminals . . . ." (J.R. Spencer, Orality and the Evidence of Absent Witnesses, [1994] Crim. L. Rev. 628, 636). The same reasoning is applicable to anonymous witnesses.

  The need for a careful judicial balancing of interests is paramount. *192 Liberal legal theory, which upholds the importance of individual liberty and guarantees of human rights, requires balancing the rights of all individuals, in this context those of the accused against those of the victims. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (G.A. Res. 40/34, 11 Dec. 1985) expressly affirms the necessity for national and international measures to ensure respect for "the rights of victims of crime."

  This requires a balance between the rights of two categories of individual: the accused's right to a fair trial and the witness's/victim's rights to life, bodily integrity and security, and privacy of the person (European Convention on Human Rights, Arts. 2, 5, 8; International Covenant on Civil and Political Rights, Arts. 6, 9, 17).

  A criminal trial is not between accused and victim: the crime is committed against the State. The balancing act requires all public interests to be weighed: the public interest in the preservation of anonymity and the encouragement of prosecution witnesses to give evidence; the public interest in the safety and security of witnesses; the public interest in evidence being given without fear or intimidation; the public interest in the accused receiving a fair trial; the public interest in public criminal proceedings; and the privacy interests of the witnesses. "The public interest in the ability of the defendant to elicit or establish facts, which was to be weighed against the public interest in the anonymity of [undercover operatives], was an aspect of the public interest that the defendants in criminal cases should have a fair trial" (Jarvie and Another v. Magistrates Court of Victoria at Brunswick and Others, [1994] V.R. 84, 89 (S. Ct. Vict.)).

  Domestic courts have undertaken this balancing exercise and have upon occasion determined in favor of non-disclosure of the identity of witnesses to the accused. It is submitted that Rule 75 requires the Tribunal to undertake a similar balancing process upon the facts of individual applications to determine whether a non-disclosure order to the public should be made. The same exercise should be undertaken, by analogy to domestic cases, with respect to disclosure to the accused.

III.3 Guidelines Provided by Domestic Courts in Balancing the Rights of the Accused against Those of Witnesses

  Domestic cases provide some guidelines as t0 the factors that might be taken into account in making this determination.

*193 A. COMMON LAW JURISDICTIONS

  Differentiation should be drawn between rules of criminal procedure in civil law and common law jurisdictions. In the common law the presence of a jury to determine issues of fact places great emphasis on the oral tradition of criminal trials, which demands the exclusion of hearsay evidence.

  The common law adversarial model requires accused persons to know their accuser. This model is premised upon the idea of confrontation and testing the oral evidence of the accuser through examination and cross-examination. The risk of an unsound conviction through reliance on secondhand evidence is considered greater in trials before a jury than in those where the trier of fact is a professional judge. Against this understanding of the trial process it is not surprising that common law courts have been reluctant to allow the anonymity of prosecution witnesses, and that the balancing test has tended to come down on the side of the accused.

  Nevertheless, the importance of the physical presence of witnesses before the trier of fact has been counterbalanced by other considerations, even in common law jurisdictions. The possibility of accepting the evidence of an anonymous witness has been conceded both in legislation and in case law. These examples are especially significant given the assumptions about the adversarial process.

  New Zealand. In 1986 New Zealand legislated to allow the identity of a police undercover agent to remain concealed after the courts had refused leave to do so (R. v. Hughes, [1986] 2 N.Z.L.R. 129). The Evidence Act, 1908, §  13A, authorizes the Commissioner of Police to file a certificate in the court with respect to an undercover police officer to prevent his or her real identity being disclosed in court, except by leave of the judge.

  England and Wales. In England and Wales the anonymity of witnesses has been preserved by allowing them to give evidence under pseudonyms and from behind screens with their voices disguised through voice-distortion equipment. In R. v. D.J.X., S.C.Y., and G.C.Z., Lord Lane, C.J., of the Court of Appeal, stated:

    The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. . . . What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to *194 where the balance of fairness lies (91 Cr. App. R. 36, 40 (C.A. 1990)).

  In R. v. Watford Magistrates Court ex parte Lenman and Others ([1992] T.L.R. 285; [1993] Crim. L. Rev. 388), the Queen's Bench Divisional Court applied this test. The Court held that where a tribunal was satisfied that there was a real risk to the administration of justice because a witness on reasonable grounds feared for her or his safety if identity were disclosed, it was entirely within its powers to take appropriate steps to ensure that witness's safety. This is an especially relevant case for the International Tribunal as it involved street gang violence where the accused had simply picked upon passers-by. The identity of these victims was therefore irrelevant and the chance of prejudice against the accused in that witnesses had a grudge against them, "an axe to grind," was insignificant compared to the risk of justice being thwarted if screens were not allowed. Had screens not been permitted to protect their identity, the witnesses might have refused to testify. The prosecution could have requested written evidence under the Criminal Justice Act, 1988, §  23(1):

    [A] statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence . . . would be admissible if--[(3)(a)] the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and [3(b)] the person who made it does not give oral evidence through fear or because he is kept out of the way.

Under the Act, the judge has the discretion whether to grant the request, which must be considered to be in the interests of justice (§  26). This procedure would have caused greater disadvantage to the defense than the use of screens in that there would have been no right of cross-examination. "If witnesses to truly terrifying events . . . are not prepared to be identified in Court, but are prepared to attend and testify from behind a screen, it is in the interests of justice that there should be a power to allow them to do so" (Comment, [1993] Crim. L. Rev. 389, 390).

  In R. v. Taylor ([1994] T.L.R. 484) the English Court of Appeal upheld and applied Ex parte Lenman. It held that the right to see and know the identity of witnesses could be denied only in "rare and exceptional circumstances." This is the same test as in Rule 69(B) and is therefore *195 especially relevant. The Court provided guidelines for consideration by a judge or magistrate in determining whether there are sufficient exceptional circumstances to justify suppressing the name and/or address of a witness. The guidelines follow:

    1. There must be real grounds for fear of the consequences if the evidence were given and the identity of the witness revealed. In practical terms it might well be sufficient to draw a parallel with the Criminal Justice Act 1988, §  23(3)(b), which concerned the admissibility of statements where the witness did not wish to give oral evidence through fear, but in principle it might not be necessary for the witness himself to be fearful or to be fearful for himself alone. There could be cases where concern was expressed by other persons, or where the witness was concerned for his family rather than for himself.

    2. The evidence must be sufficiently relevant and important to make it unfair to make the Crown proceed without it. A distinction could be drawn between cases where the creditworthiness of the witness was in question rather than his accuracy.

    3. The Crown must satisfy the court that the creditworthiness of the witness has been fully investigated and disclosed.

    4. The court must be satisfied that there would be no undue prejudice to the accused, although some prejudice is inevitable, even if it is only the qualification placed on the right to confront the witness as accuser. There might also be factors pointing the other way, for example, as in the present case where the defendants could see the witness on a video screen.

    5. The court could balance the need for protection of the witness, including the extent of that protection, against unfairness or the appearance of unfairness.

It seemed to their Lordships that there was no reason in principle why the same considerations should not apply to a witness for the defense.

  Australia. By statute in Australia those who report child abuse and sexually transmitted diseases are protected from disclosure of their identity *196 in order to encourage reporting of such offenses. (A similar approach was taken by common law in the English case of D. v. National Soc'y for the Prevention of Cruelty to Children, [1978] App. Cas. 171.)

  In Australia the Supreme Court of Victoria has recently given careful consideration to situations where the prosecution may conceal the identity of its witnesses from the accused.

  Jarvie and Another v. Magistrates Court of Victoria at Brunswick and Others  ([1994] V.R. 84 (S. Ct. Vict.)) concerned a claim for anonymity for undercover police operatives. Judge Brooking of the Supreme Court of Victoria considered that the case presented a matter of legitimate public concern which should be determined on the same basis as claims to public interest immunity. The principles of exclusion of evidence on public interest immunity grounds apply to oral as well as documentary evidence. He considered a number of relevant factors: whether there was a real danger of injury or death to the witness; whether there was a serious threat of physical harm; and the non-effectiveness of witness protection programs. Although the case concerned undercover police operatives, the judge stressed that his conclusion was not limited to police operatives. It "extends to other witnesses whose personal safety may be endangered by the disclosure of their identity" (Id. at 99).

  The judge emphasized that personal safety of witnesses is not a matter of expediency but an important object of the proceedings. It is therefore a matter of public concern in the effective administration of justice. Personal violence to one witness (or a witness's family), or even fear of such violence, could cause others to decide not to give evidence and thus prejudice the whole trial process.

  Judge Brooking also considered factors tending against non-disclosure. The value of knowing the identity of the witness to the preparation of the defense is the major factor. Where there is good reason to believe that disclosure of the witness's identity may be of substantial assistance to the defendant in answering the case against him then it may be hard to argue against disclosure. Where identity would offer only slight assistance it would not be sufficient to require disclosure. A third category would be where disclosure of identity would offer no assistance to the accused. As will be argued further below, this may be the case in rape in armed conflict, where the individual identities of the victims are irrelevant.

  It is repeatedly emphasized that non-disclosure will not be ordered lightly for reasons such as to prevent embarrassment to the witness, invasions of privacy, or even damage by publicity. However, where the witness has *197 reason to fear violent reprisal and may consequently be unwilling to offer evidence, then courts in some jurisdictions have been prepared to respond to the exigencies of the case. The same should be true where the risk is of severe trauma.

  Another factor may be the importance of the evidence of a particular witness to the prosecution case; that is, whether anonymity is requested for a major or a minor witness, an "accuser" or a witness there merely to fill in some formalities. Admittedly, victims before the Tribunal will come under the former category, but the nature of the offenses makes this inevitable. It can also be argued that the more significant the witness's testimony the more serious will be the harm caused by failure of the witness to testify, or to give incomplete testimony through fear or anxiety. Where there are a number of witnesses whose evidence corroborates each other's, this disadvantage seems to be overcome.

  United States. Even in the United States, where the Sixth Amendment to the Constitution protects the defendant's right to confront the witnesses against him, the Supreme Court has recognized some exceptions.

  In Delaware v. Van Arsdall (475 U.S. 673, 679 (1986)) the Court held that the accused's right to full confrontation must occasionally give way to competing government interests, including prevention of victim harassment, jury prejudice, confusion of issues, or danger to witnesses. The earlier case of United States v. Rich (262 F.2d 415 (2d Cir. 1959)) had recognized that there are limits to the right of questioning in cross-examination and upheld the withholding of a witness's address on the ground of personal danger to the witness. Once it is accepted that there are limits on the right of cross-examination it is easy to move on "to accepting that the name of the witness may, where the circumstances require it, also be withheld" (Jarvie, [1994] V.R. at 97).

  In R. v. Hughes President Cooke of the New Zealand Court of Appeal  (dissenting) and in Jarvie Judge Brooking of the Supreme Court of Victoria listed some U.S. cases where a witness called by the prosecution whose personal safety was deemed to be at risk was able to testify without disclosing to the defendant facts bearing on the identity, past or present, or whereabouts, past or present, of the witness, without infringing the defendant's rights under the Sixth Amendment.

  These cases included United States v. Crovedi (467 F.2d 1032 (7th Cir. 1972), cert. denied, 410 U.S. 990 (1973)); United States v. Ellis (468 F.2d 638 (9th Cir. 1972)); United States v. Rangel (534 F.2d 147 (9th Cir.), *198 cert. denied, 429 U.S. 854 (1976)); Clark v. Ricketts (958 F.2d 851 (9th Cir.), cert. denied sub nom. Clark v. Lewis, 506 U.S. 838 (1992)); and Siegfriedt v. Fair (982 F.2d 14 (1st Cir. 1992)), which all upheld the refusal to reveal the witness's name; and cases from state courts, including People v. Stanard (365 N.E.2d 857 (N.Y.), cert. denied, 434 U.S. 986 (1977)); Castle v. State (748 S.W.2d 230 (Tex. Crim. App. 1988)); and Jackson v. State (544 N.E.2d 853 (Ind. 1989)), where the identity of relocated witnesses was withheld. (To reveal such identity would undermine the effectiveness of state witness protection programs, which would be contrary to the public interest in the effectiveness of these programs.)

  In McGrath v. Vinzant (528 F.2d 681 (1st Cir.), cert. dismissed, 426 U.S. 902 (1976)), the address of a rape victim was withheld. The argument that the accused was in custody and therefore the victim was not in danger was rejected because the accused might have accomplices or might subsequently be acquitted.

B. CIVIL LAW JURISDICTIONS

  Continental inquisitorial legal systems place greater weight upon the collection of written evidence in the compilation of the dossier on the case. Deposition evidence may be relied upon at trial when the witness is not available to appear in court, although there is generally an assumption that the defendant will have been present during the taking of the evidence and have had an opportunity to put questions. In non-jury civil law trials "the general tendency is to rely on the skill, competence and experience of a professional judge" (N. Zaltzman, Admitting Statements of Missing or Intimidated Witnesses: Section 23(3) of the Criminal Justice Act 1988 Compared with the Israeli Experience, [1992] Crim. L. Rev. 478, 479).

  The International Tribunal may under Rule 71(A) "in exceptional circumstances and in the interests of justice" order a deposition to be taken. However, the motion shall indicate the "name and whereabouts" of the person from whom the deposition is to be taken (Rule 71(B)) and the other party has the right to attend the taking of the deposition and to cross-examine (Rule 71(C)). Rule 71 does not provide for anonymous depositions, although it does allow for written evidence in place of attendance at trial (Rule 71(A)). This could provide some protection to witnesses.

  In cases involving security it has been accepted (for example, in Germany) that the identity of a witness need not be divulged at any stage of the criminal process. In these instances the witness testifies to a police *199 officer, who in turn presents the testimony in court. The court may compile a list of questions it wishes to be put to the witness, the answers to which can then be presented to the court. While it is recognized that this provides no opportunity for the defendant to assess the credibility of the witness, the court can make that evaluation. The court requires further circumstantial evidence (H. Reiter, Hearsay Evidence and Criminal Process in Germany and Austria, 10 Monash U. L. Rev. 51 (1984)).

  In Denmark the Act on Court Procedure does not make explicit whether the accused has the right to know the identity of prosecution witnesses. Through a series of decision, the Supreme Court has held that a witness whose life and safety will be endangered by giving evidence is not obliged to do so. If, however, the witness is prepared to give evidence, despite the exposure to personal danger or to danger for persons closely related, then anonymity may be granted (J. Andersen, The Anonymity of Witnesses: A Danish Development, [1985] Crim. L. Rev. 363).

  The Israeli Evidence Ordinance, 1979, §  10A(b), allows the written statement of a person to be submitted in evidence provided it is made by a person who is not a witness before the court and the court is satisfied that improper means have been used to dissuade or prevent the person from testifying. A person cannot be convicted on the basis of such a statement unless there is other supporting evidence.

  Procedures in various European countries have been scrutinized by the European Court of Human Rights and will be briefly referred to below.

IV. NON-DISCLOSURE OF THE IDENTITY OF WITNESSES TO THE ACCUSED CAN BE MADE

COMPATIBLE WITH THE ACCUSED'S RIGHT TO A FAIR TRIAL

   All the States mentioned above are parties to international human rights treaties requiring a fair trial. In all of these jurisdictions judges are concerned to minimize the adverse effect for the defendant of being denied the chance to confront witnesses. However, a "fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused" (Jarvie, [1994] V.R. at 90).

   While the paramount importance of a fair trial is accepted, this does not mean that "no party will suffer harm" (Independent Commission Against Corruption v. Chaffey, 30 N.S.W.L.R. 21, 22 (N.S.W. C.A. 1993)).

   As is recognized by the defense, the requirements for a fair trial in the International Covenant on Civil and Political Rights (Art. 14) and the *200 European Convention on Human Rights (Art. 6) are equivalent. Since the European Court of Human Rights has laid down the highest standards and provided the fullest elaboration of the rights of fair trial its jurisprudence is especially relevant. The events before the Tribunal occurred within the former Yugoslavia, the accused and potential witnesses are from the former Yugoslavia, and the Tribunal is located within Europe. Although Yugoslavia was not a Member of the Council of Europe, the standards of the European Convention are now aspired to by most European States, including those from the former socialist bloc. It is appropriate that the Tribunal act in conformity with its standards.

IV.1. European Court of Human Rights

  The European Court of Human Rights has considered on a number of occasions whether the right to a fair trial was violated by proceedings within national criminal courts. In these cases issues of anonymity, absent witnesses, different stages of the criminal process, and the opportunity for the defense to cross-examine are frequently brought together. The Court has emphasized that it is for national courts to determine their procedures and that it is important to view the totality of the trial process in assessing its fairness.

  Unterpertinger v. Austria ([1986] Ser. A, Vol. 110). The complainant alleged a violation of Article 6(3)(d) because two witnesses did not appear in court. The witnesses were known to the complainant (wife and step-daughter). The case is interesting as it appears to be one of domestic violence, where the wife was eventually accused of harming her husband, although there was evidence of previous injury suffered by her. The witnesses refused to appear before the trial court or the Court of Appeal as they were entitled to do under the Austrian Code of Criminal Procedure but the report does not indicate their reasons. The European Court commented that this allows a witness to avoid being put in a moral dilemma by testifying against a family member. The Court considered that the fact that such a refusal prevents the defense's examining witnesses at the oral proceedings is manifestly not of itself a violation of Article 6(3)(d) and noted that there are similar provisions in effect in a number of Member States of the Council of Europe. However, the Court considered that the complainant's rights had been appreciably restricted since the conviction had been based mainly on the statements of these witnesses to the police and the accused had had no opportunity to question them. On these facts there was a violation of Article 6(3)(d).

  *201 Kostovski v. the Netherlands ([1989] Ser. A, Vol. 166). This case concerned convictions by a Dutch criminal court which were based largely on anonymous evidence because of the witnesses' fear of reprisal. Two witnesses, whose identity was not revealed, were questioned by the police, and one of them by the examining magistrate. The witnesses were not questioned by the trial court. The European Court of Human Rights found the Netherlands to have violated Article 6(1) and (3) of the Convention. It is relevant that neither the accused nor the trial court knew the identity of the witnesses, nor had they had the opportunity to form their own impression of their reliability through observation of their demeanor or response to questioning.

  It is not suggested that the identity of prosecution witnesses would not be known to the Judges of the International Tribunal, nor that witnesses should not be subject to cross-examination, other than questioning that would be likely to reveal their identity. Further, as pointed out in the decision below, by the European Commission, in Kostovski, the witnesses' evidence was itself hearsay and they did not claim to have seen the robbery, nor to have been present at the commission of the offense. These factors distinguish the position of witnesses before the Tribunal. The Commission did not find it necessary to make a ruling on the compatibility of anonymous evidence with the requirements of a fair trial.

  Delta v. France ([1990] Ser. A, Vol. 191A). The European Court found there had been a violation of Article. 6(3)(d) for failure to bring key witnesses to a robbery (the victim and her friend) to court; instead, the prosecution had relied upon their statements to the police. However, in this case no other prosecution evidence had been relied upon and there had been no opportunity for confrontation. No reasons were given for the failure of the witnesses to appear and the defendant's request on appeal for them to be compelled to attend was rejected. It was not argued that there were special circumstances justifying anonymity so there was no attempt to balance the conflicting interests.

  Windisch v. Austria ([1990] Ser. A, Vol. 186). The national court convicted the complainant using the testimony of two anonymous witnesses who saw a man they identified as the accused behaving suspiciously in the street. The witnesses did not see the accused commit the crime. They requested anonymity for fear of reprisal. Their names were not made known to the court and the court was not able to see their demeanor and assess their reliability. This was the only evidence relied upon and there was no evidence to place the accused at the scene of the crime. "Being unaware of *202 their identity, the defence was confronted with an almost insurmountable handicap: it was deprived of the necessary information permitting it to test the witnesses' reliability or cast doubt on their credibility" (¶  28). The emphasis on these factors distinguishes this case from that of prosecution witnesses before the Tribunal. Tribunal witnesses requesting anonymity will have been present at the commission of the offenses and indeed most frequently have been the victims of such offenses. It is also anticipated that the Trial Chamber will be able to assess the demeanor, reliability, and creditworthiness of the witnesses and that there will be other evidence of the presence of the accused at the scene of the crimes.

  Isgro v. Italy ([1991] Ser. A, Vol. 194A). The complainant alleged that he had been convicted on the basis of statements made to the investigating judge by a witness who did not appear at trial. However, the witness's identity was known to the complainant. The European Court held there had been no violation of Article 6(3)(d) as the complainant had been able to put questions directly to the witness and to discuss witness statements. Moreover, other evidence had been available to support the conviction.

  Asch v. Austria ([1991] Ser. A, Vol. 203A). This case is not directly on point as the witness was not anonymous to the accused in the trial court (she was the woman the complainant was living with). She did not appear to testify. The complainant's conviction was based on her written statement and other corroboration, including the oral assessment of the investigating officer and medical certification. The Court held there was no violation of Article 6(3)(d).

  Lüdi v. Switzerland ([1992] Ser. A, Vol. 238). An undercover police agent remained anonymous. The Court distinguished Kostovski and Windisch in that the witness was a sworn police officer known to the trial court and also to the defendant, but by a pseudonym. However, Article 6 was held to be violated since the witness did not appear before the trial court at all and the complainant had no opportunity to challenge his written testimony.

  These cases demonstrate the concern of the European Court of Human Rights for ensuring that national courts observe requirements for a fair trial. The right of the accused to confront a witness at trial is an important part of this. However, the cases also stress the holistic nature of the trial and require that a trial as a whole must be fair (European Convention on Human Rights, Art. 6(1)). The cases do not explicitly consider whether the requirement of protection of witnesses justifies denying the accused the right to confront named witnesses. Significantly absent from *203 these cases is any discussion of the potential dangers faced by witnesses in certain types of cases and the possible consequences to themselves of their giving evidence, and to the trial process of their not giving evidence, or giving incomplete evidence. While the Court acknowledges that as a rule the accused must have the opportunity of challenging evidence, these cases do not exclude the possibility of anonymity and denial of the right of confrontation.

  On their various facts most of these cases were not appropriate ones to deny the accused the possibility of examining witnesses, although the balancing process emphasized in domestic courts is not made explicit. Reasons for finding violations of Article 6(3)(d) include the following: the anonymous witness's evidence was itself hearsay; there was no opportunity for cross-examination or questioning; the witness's identity was not known to the trial judge; the trial court officials had no opportunity to observe witnesses to assess their credibility, reliability, and demeanor; and there was no other prosecution evidence.

  It is not suggested that procedures before the International Tribunal will replicate these disadvantages and the cases can therefore be distinguished. The Tribunal's procedures need not be incompatible with the right to a fair trial. Indeed, in Lüdi the European Court commented:

    [I]t would have been possible to do this [have the investigating judge or trial court put the defense's questions to witness] 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 (¶  49).

If the Tribunal determines anonymity to be justified it can make the appropriate procedural orders to minimize the disadvantages to the accused.

IV.2 European Commission of Human Rights

  The European Commission of Human Rights has considered other cases which did not proceed to the Court.

  An especially relevant case is Kurup v. Denmark (App. No. 11219/84). The applicant claimed violation of the Convention in that the identity of witnesses was not revealed to him, that he was not present in the trial court when the witnesses gave evidence, and that he was excluded from *204 that part of the prosecutor's summing up which dealt with the statements of these witnesses. The accused was informed of the contents of the witnesses' statement but without any identification included. The case concerned drug offenses.

  The Commission considered especially the role of defense counsel. Defense counsel was obliged not to discuss with the complainant those parts of the evidence that could lead to revealing the identity of the witnesses. This restriction did not interfere with the complainant's right to prepare his defense in a way contrary to Article 6(3)(d). The Commission also accepted that in exceptional circumstances there may be reasons for hearing a witness in the absence of the accused, providing defense counsel is present. The right to a fair trial does not secure an accused the right to be present in person in all circumstances. The application was held to be inadmissible.

   This case suggests that the right to a fair trial may be satisfied by allowing defense counsel access to information about the witnesses' identity and allowing counsel to be present throughout the examination. The words "examine or have examined" in Article 6(3)(d) support this interpretation, that is, allowing examination on behalf of the accused to be carried out by his legal representatives.

   This compromise may not be acceptable in proceedings before the Tribunal, where the Tribunal may not have the authority to require defense counsel to refrain from informing the accused of details of prosecution evidence. Domestic courts have powers such as contempt of court to enforce compliance with their orders. Contempt of the Tribunal covers refusal of witnesses to answer questions and attempts to interfere with or intimidate witnesses (Rule 77). The Rule does not specify that the Tribunal has wider, inherent powers of contempt to back up other orders.

   The continuation of the armed conflict in the former Yugoslavia also militates against allowing defense counsel information prohibited to the accused. However, the words "or have examined" in Article 6(3)(d) could also be applied to officers of the court, in particular the judges, in a context such as the International Tribunal for the Former Yugoslavia.

V. NON-DISCLOSURE IS JUSTIFIED BY POLICY CONSIDERATIONS IN THE TRIAL OF SEXUAL

ASSAULT CASES

   If the Tribunal accepts that anonymity of witnesses can be justified in some cases and is compatible with a fair trial for the accused, it must determine *205 whether it is appropriate to accord anonymity in the trials of charges of sexual assault. The cases where claims for anonymity are considered most regularly are those where security interests of the State are most evidently at stake: for example, drug trafficking, organized crime, undercover police operatives, and police informers.

   It is submitted that cases of sexual assault are appropriate for consideration of anonymity for a number of reasons which relate to the nature of the offenses; the threat to the survivors and their families because of the continuation of the conflict; and the interests of the international community.

 V.1 Nature of the Offenses: Rape in Armed Conflict

   Particular characteristics of rape and sexual assault in armed conflict make these crimes especially appropriate for claims of anonymity of victims and witnesses.

   It is submitted that the distinguishing characteristics of rape in armed conflict justify procedural measures to protect victims and witnesses.

   "Massive, organized and systematic detention and rape of women" (S.C. Res. 820, ¶  6, 17 Apr. 1993) is committed by men of one side against the opposing side in an armed conflict. Rape in armed conflict is to further the cause of one warring faction against another. "The raping of the women of a community, culture or nation is also conducted because of a belief that such rape is the symbolic rape of the body of that community, the destruction of the fundamental elements of a society and culture" (Preliminary Report, supra, ¶  280).

   The Commission of Experts established by the Security Council to investigate allegations of violations of international humanitarian law in the former Yugoslavia found that systematic and organized rape was used as an instrument of war (Letter from the Secretary-General to the President of the Security Council, May 24, 1994, U.N. Doc. S/1994/674 (1994), transmitting Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), ¶  313). The aim of armed conflict is to defeat the enemy without regard to their individual identities. Rape and sexual assault of men and women in armed conflict are not a matter of chance, but a deliberate strategy to demoralize, terrify, and defeat the community against which the acts are committed. Accused persons should not benefit from the climate of fear and terror created as part of the armed conflict, especially as this contributes to survivors' unwillingness to reveal *206 what happened to them.

   In turn, the State has the duty to protect its citizens and to seek redress on their behalf. National forms of criminal prosecution emphasize that crimes are committed against the State with the victim presented as a prosecution witness. However, survivors of sexual assault are unique. By definition there is no one else able to perform an investigative or undercover role. The burden of reporting the offense and thus enabling the State to prosecute falls directly upon these people with the personal risk of actual reprisal, and further psychological damage and trauma. Studies have shown that rape and sexual assault are the most unreported crimes in domestic law, with a very low conviction rate in those cases that are reported. (For example, L. Kelly, Surviving Sexual Violence 74 (1988), concluded from her research that some 50 percent of women had had sexual intercourse against their will. Reported figures are much lower.)

   If rape and violence against women are recognized as part of an overall structural problem which subjects women through their lack of economic, social, and political power to the fear and reality of violent sexual attack, it follows that there is an especially important burden upon the State to act to redress this problem (Preliminary Report, supra, ¶ ¶  49-57). The Special Rapporteur on Violence against Women comments that "the State may emerge as the major instrument in transforming certain legislative, administrative and judicial practices which empower women to vindicate their rights" (Id. ¶  52). Legal protection of witnesses and victims (both male and female) is one way of achieving this.

   Through the establishment of the International Tribunal, the Security Council has taken over this task on behalf of the international community, with war crimes accepted as crimes against the international community as a whole. It would be contrary to this decision to undermine its effectiveness through insistence on disclosure of witnesses' names.

   Failure to accord anonymity where it is requested risks invalidating potential witnesses' testimony and undermining their credibility. This in turn reinforces the traditional silence about rape in armed conflict (S. Brownmiller, Against Our Will ch. 3 (1975)). If this silence is to be broken, sworn but anonymous evidence must be heard and respected.

   Rape of women leads to pregnancy and childbirth. Children may be at risk of physical harm if they are exposed through identification of their mothers. Anonymity may also be necessary to protect the privacy rights of third parties, that is, children born as a result of sexual attacks. Such *207 children have the right to be protected from the public disclosure of the circumstances of their conception.

V.2 Continuation of the Conflict

   The armed conflict in the territory of the former Yugoslavia is not over. All other alleged perpetrators are still at large and have obvious interests in the trial not continuing. [FN5] Witnesses have family members and friends still within the areas of conflict. Many Bosnian Muslims are still missing. The prosecution's statement of facts shows the extreme brutality and lawlessness that have characterized the conflict. In this situation the risk to the physical and mental safety of the individuals involved, and their families, including children, is grave.

 V.3 Interests of the International Community

   Denying anonymity might undermine the objectives of Security Council Resolution 827 (25 May 1993).

   Acting under Chapter VII of the United Nations Charter the Security Council responded to the events in the former Yugoslavia by first establishing a Commission of Experts and then the Tribunal. Its objectives in the maintenance of international peace and security will be undermined by fear of violence or of the threat of violence on the part of those who testify before the Tribunal.

   The alleged violent acts are themselves contrary to these objectives; any process that continued or added to that fear would therefore undermine the very basis of the Tribunal.

   International humanitarian law is most effective where there is reciprocity between the parties. Thus, the protection of prisoners of war where each side has an interests in compliance tends to be more readily accepted than that of civilians, especially in the case of enemy occupation. It is submitted that one of aims of the establishment of the Tribunal is to increase compliance for the benefit of all civilians who are caught up in *208 armed conflict. The Tribunal has an opportunity to contribute to the enforcement of this branch of law and procedural protection to witnesses and victims will facilitate this task.

   Traditional human rights doctrine is cast in terms of providing a balance between the rights of the State and the rights of the individual. The provisions on fair trial therefore focus on the guarantees the State must give the accused and do not spell out the rights of the victim to privacy, life, and security.

   The armed conflict that is the basis for these charges itself destroyed the human rights of many of the witnesses. In the words of the UN Special Rapporteur on Violence against Women: "War, repression and the brutalization of public and private life have destroyed the possibility of human rights being enjoyed as a universal phenomenon. Violence against women, in particular, has inhibited women as a group from enjoying the full benefits of human rights" (Preliminary Report, supra, ¶  47; cf. Gen'l Recommendation 19, "Violence against Women," Report of the Committee on the Elimination of Discrimination against Women, U.N. GAOR, 47th Sess., Supp. No. 38, at 1, 99, U.N. Doc. A/47/38 (1992); Declaration on the Elimination of Violence against Women, G.A. Res. 48/104, 20 Dec. 1993)).

   The Special Rapporteur's Preliminary Report goes on to state that the international community has determined upon a concerted action against incidents of violence against women as part of a general campaign for human rights. Ensuring that acts of violence against women in armed conflict are prosecuted through legal process is part of this campaign. The Security Council has established the Tribunal as the mechanism through which international legal regulation for the protection of civilians can be made a reality. This requires as far as is possible witnesses to be able to testify without risk of injury or intimidation.

   "All persons . . . are entitled without any discrimination to the equal protection of the law" (International Covenant on Civil and Political Rights, Art. 26). The Declaration on the Elimination of Violence against Women states that States "should" provide "penal . . . and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women [,] who . . . should be provided with . . . just and effective remedies for the harm that they have suffered" (Art. 4(d)). Law is seen as a tool to deliver justice and equity to victims of violence. Legal principles should not be used to thwart this elementary promise of the law.

   Human rights law has been notoriously reluctant to accommodate *209 conflicting rights. It is noticeable that the Statute of the Tribunal does not reconcile the potential conflict between Article 21 and 22. The wording does not indicate any priority. Where there are conflicts of human rights, priorities have to be decided and in these circumstances, where effective justice may not be attainable without witness protection, priority should be accorded to the lives and security of the witnesses. Equality before the law may not be achievable without such protection. It is submitted that according priority to the individual civil and political rights which have traditionally been favored can lessen the security and well-being of women (H. Charlesworth & C. Chinkin, The Gender of Jus Cogens, 15 Hum. Rts. Q. 63 (1993)).

   There is no international criminal procedure for the trial of sexual assault cases. The work of the International Tribunal is unique in this regard. The processes and Rules of Procedure and Evidence it adopts will become models for future tribunals exercising jurisdiction under international law, and for domestic tribunals. Domestic courts have faced many problems with the prosecution of sexual assault and examples have been given in this brief of the changed attitude in the courts of some States towards victims of sexual assault. The international legal system has delivered little to women (H. Charlesworth, C. Chinkin & S. Wright, Feminist Approaches to International Law, 86 Am. J. Int'l L. 614).

   The Tribunal has a unique opportunity to demonstrate that the concerns and needs of women are taken seriously within the international arena, as well as those of all victims of violations of international humanitarian law.

VI. POSSIBLE PROCEDURES

   Various procedures to minimize the disadvantages to the accused, while providing protection to the witnesses, have been suggested in the discussion of domestic case. It is necessary to ask what disadvantages the accused will suffer through non-disclosure and what steps can be taken to minimize these disadvantages.

   This section does not purport to design procedures for the Tribunal to follow but merely to summarize some of the devices that are available and might be ordered where there is a successful claim for anonymity. It also suggests that anonymity may not be as prejudicial to the accused as might be thought.

   *210 Witness anonymity cuts off lines of enquiry that might be suggested through the hearing of evidence. "The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself" (Smith v. Illinois, 390 U.S. 129, 131 (1968), quoted in R. v. Hughes, at 138). It also restricts showing that the witness's evidence is based on prejudice, hostility, or spite and imposes the duty upon court officials and judges to ensure that this line of enquiry is pursued.

   If defense counsel is allowed to know the witness's identity, according anonymity to witnesses presents procedural difficulties. The accused cannot be present during cross-examination of witnesses by counsel. Counsel's account to the defendant must necessarily be modified to ensure no identification is possible. This limits the relationship between defendant and counsel.

   As already stated, it is submitted that disclosure of witnesses' identity to defense counsel may not be appropriate in the situation in which the Tribunal is operating.

   However, it is suggested that the identity of the accuser need not be of significance, and that steps can be taken to ensure that the witness is not hostile or prejudiced against the accused.

   First, it is important to distinguish trials of rape and sexual assault in armed conflict from those in domestic law. In many cases of rape in domestic law consent of the victim is the basis of the defense. (For example, Law Reform Commission of Victoria (Austl.), Interim Report No. 42, Rape: Reform of Law and Procedure (appendixes) found in a study of 51 accused that claim of consent was the defense in 51 percent of cases; belief in consent in 6 percent of cases; belief in consent and victim consented in 17 percent.) The identity of the victim is admittedly crucial in such cases, where the accused must be able to challenge the witness's allegations and version of the events.

   Consent is unlikely to be the issue in cases before the Tribunal. Rule 96(ii) limits the situations where consent may be raised. In the context of forced detention during armed conflict in the conditions described by the prosecution, it is extremely hard to envisage a situation where evidence of consent would "be relevant and credible" (Rule 96(iii)). Where rape is an instrument of war and the individual identity of the victims (as opposed to their ethnic identity) is irrelevant to the commission of the offenses, it *211 should also be irrelevant to the defense.

   In some instances, victims of rape in the former Yugoslavia did not know the identity of those who attacked them. A person can be effectively identified in legal proceedings by physical characteristics; a name in effect acts merely as a label. Similarly, sexual assaults were committed against inmates of the Omarska camp. [FN6] Their individual names or identities were irrelevant. From the point of view of defense, identity of the witnesses is not as crucial as it might be in domestic cases of rape or in other criminal charges. Similarly, the true identity of an undercover agent need not be essential for accepting the testimony that is offered. What is essential is the evidence as to the events from the witness, along with the possibility of questioning. It might be argued that the fact that the undercover agent is acting in the course of employment is an added reason for according anonymity. The victims of rape and sexual assault in armed conflict are chosen because they are there, like the victims of street violence in the Lenman case. The public has an interest in redressing violence of this sort for the benefit of all potential victims.

   The practical significance of a name is that its use in official records and other forms of social documentation makes it possible to trace a person and facilitates revenge. Thus, withholding the names of victims protects their identity, without depriving the accused of essential information.

   If the importance of naming witnesses can be minimized, that of their credibility cannot, as was recognized in the English Court of Appeal guidelines. However, there are ways of assessing credibility without identifying witnesses. For example, members of the Trial Chamber can question witnesses to assess their integrity and good character. They can also ascertain the reliability of the identification evidence and ask questions to determine whether there is any basis for suspecting that the witness is a "grudge" witness, or has past prejudices that weaken her testimony.

   Identification can be made from photographs, from behind one-way mirrors, or by closed-circuit television. The accused can prepare questions for the witnesses and ask the Judges of the Trial Chamber to ask them on his behalf and to relay the answers back to him. This process of question and answer through the intermediary of the Trial Chamber could continue until the defense had completed its case.

   Another possibility is for a witness to be represented in proceedings *212 by another person who gives evidence on behalf of the witness and who takes questions from the accused back to the witness and returns with answers. The Trial Chamber could observe the demeanor of the witness throughout this procedure and ensure that questions were properly put.

   Alternatively, the defense could question witnesses who are located behind screens and whose voices are distorted. Again, the witness could remain within the view of the Trial Chamber.

   Such devices are used in domestic courts. For example, the Amendment (Sexual Offences) Act, 1992, §  106R (W. Austl.), states that the use of a support person, screens, and closed-circuit television may be pursued where "the witness may suffer emotional trauma or be intimidated and distressed and unable to give evidence by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other reason."

   Provision for a support person of the witness's choosing who should sit close to the witness when giving testimony, even if the accused is not present, also can help to reduce the trauma of the occasion.

   Moreover, attempts can be made to reduce the intimidating atmosphere of the proceedings, for example, by ensuring the presence of other women within the courtroom as officials, lawyers, or support staff.

   In these and other ways the Tribunal can ensure that its proceedings do not further prejudice the safety and security of those who have already suffered so much, while preserving its international reputation as an institution governed by the rule of law, not naked power.

 [FNa]. LL.B., University of London 1971; LL.M., University of London 1972; LL.M., Yale University 1981; Ph.D., University of Sydney 1990. The author wishes to thank Urfan Khaliq for his assistance in the preparation of this brief.

 [FNaa]. Office of the Prosecutor: Grant Niemann; Alan Tieger; Michael Keegan; Brenda Hollis; and William Fenrick.

  Counsel for the Accused: Michail Wladimiroff; Milan Vujin; and Krstan Simic.

 [FN1]. Editors' note: Citations are to U.N. Doc. IT/32/Rev.3 (1995).

 [FN2]. Editors' note: At the opening of the Tadic trial, the Trial Chamber granted the prosecution's request, U.N. Prosecutor Drops Rape Charge against Serb, Reuters, May 3, 1996, available in LEXIS, World Library, Allnws File, to drop the specific count of rape of witness F because she had decided not to testify for fear of reprisals against her family and herself, Marlise Simons, Far from Former Yugoslavia, First War Crimes Trial Opens, N.Y. Times, May 8, 1996, at A10, available in LEXIS, World Library, Allnws File. With regard to this witness, the Tribunal had granted delayed disclosure of her identity to the defense (30 days prior to trial), as well as the withholding of her identity from the public and the media, and the withholding of the address and present whereabouts of both the witness and her relatives. Prosecutor v. Dusko Tadic, Case No. IT-94-1-T (10 Aug. 1995), ¶ ¶  89-90 & disposition ¶  10, reprinted in this issue of Criminal Law Forum at 139 [hereinafter Protective Measures Decision].

[FN3]. Editors' note: For a survey of case and statutory law, see Phillip E. Hassman, Annotation, Propriety of Publishing Identity of Sexual Assault Victim, 86 A.L.R.3d 80 (1995).

[FN4]. Editors' note: The Prosecutor later amended the request for relief to include absolute anonymity for certain witnesses. See Protective Measures Decision, supra note 2, preamble & ¶ ¶  3-11.

[FN5]. Editors' note: The allegations centered on the Omarska concentration camp resulted in two indictments: "Tadic and Other," Case No. IT-94-I-T (13 Feb. 1995; amended 1 Sept. 1995; amended indictment revised 14 Dec. 1995) (2 accused), and "Omarska Camp," Case No. IT-95-4-I. (13 Feb. 1995) (19 accused).

[FN6]. Editors' note: See supra note 5.

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