IV. Witness Protection and Support

A. Protection of witnesses

Witnesses, who themselves may be direct victims, can face serious risks in providing testimony in war crimes trials. In light of the chamber's location in the country where the crimes occurred and the challenge of concealing a witness's identity in a small country like Bosnia, the risks for witnesses appearing before the chamber can be particularly acute. These risks underscore the importance of ensuring effective protective measures for witnesses before, during, and after trial. The availability and use of such measures-both inside and outside of the courtroom-is discussed in more detail below.

1. The chamber's use of protective measures

In addition to promoting the safety of witnesses, the appropriate use of protective measures in court can minimize the trauma associated with providing testimony during proceedings. Minimizing trauma can be an important factor in maintaining a witness's dignity during proceedings and preserving the overall quality of his or her testimony. To date, judges in the chamber have used a variety of measures available under the law to protect witnesses in the courtroom, including allowing witnesses to testify via video-link or behind a screen, using facial and voice distortion, and assigning pseudonyms.

For witnesses appearing before the chamber, some judges have started assigning new pseudonyms to those protected witnesses who testified before the ICTY. This practice assists in preventing the unintended disclosure of these witnesses' identities that could otherwise result from the repetition of the same pseudonym-and the same identifying information-in proceedings before the chamber.[115] We welcome this practice and encourage its consistent adoption in all cases involving witnesses who previously testified before the ICTY and who want to use a pseudonym in proceedings before the chamber.

In addition, a working group has been formed to address issues relating to the court's use of protective measures; it includes representatives of the judiciary, the Registry, and the Witness Support Office.[116] The working group was established to address the obligation outlined under article 25 of the Law on Protection of Witnesses Under Threat and Vulnerable Witnesses that the court "adopt rules of procedure ensuring the appropriate use of the means to protect witnesses."[117] The group analyzes protection issues in the application of the law and proposes strategies to deal with specific challenges. These proposed strategies are given to the presidents of all panels hearing cases, who then circulate them to the judges on their panels and provide feedback to the group. In this way, the working group aims to promote consistency in the use of protective measures in court and fosters communication between national and international judges in this important area.[118]

Despite these positive developments, we have concerns regarding the court's broad use of closed sessions, meaning the exclusion of the public and the media from trial proceedings. To date, at least two war crimes trials against two defendants have been held almost entirely in closed session.[119] One defendant, Nedo Samardzic, was accused of killings, forced relocations of persons, deprivations of liberty, sexual slavery, rapes, and persecution of Bosnian Muslim inhabitants on national, religious, ethnic, and sexual grounds.[120] The other defendant, Radovan Stankovic, was accused of having committed, incited, aided and abetted the enslavement, torture, rape, and killing of non-Serb civilians.[121] The latter case was the first one referred to the chamber by the ICTY under the Rule 11 bis procedure.

The right to a public trial is one of the fundamental safeguards of criminal procedure.[122] In Bosnia, there is a presumption in the law that the trial will be held in public.[123] The public nature of the trial is intended primarily to protect the interests of the accused.[124] The right to a public trial is not absolute, however. For example, both the ICCPR and the ECHR indicate that the press and the public may be excluded from all or part of a trial for reasons such as public order or national security, or when required to protect the privacy of the parties.[125] Similar exceptions are found under Bosnian law,[126] although Bosnian law clearly states that the least severe measure possible should be used.[127] The need to protect the privacy of the parties may be particularly relevant in cases involving victims of sexual violence.[128]

In addition to the defendant's right to a public trial, trials that seek to address extraordinary violations of human rights serve a broader purpose and should, to the greatest extent possible, be made public. An open trial can maintain public confidence in the criminal justice system, provide an outlet for community reaction to crime, ensure that judges and prosecutors fulfill their duties responsibly, encourage witnesses to come forward, and discourage perjury.[129] Aside from facilitating public knowledge and understanding, which may have a general deterrent effect, the public should have the opportunity to assess the fairness of the proceedings to ensure that justice is both done and seen to be done.[130]

Fostering public confidence in judicial institutions is particularly important in a post-conflict setting such as Bosnia because of recognized deficiencies in the justice system during and immediately following the war. Indeed, the War Crimes Chamber was created to address these deficiencies, improve the public's perception of judicial institutions, and contribute to the overall establishment of the rule of law in Bosnia. Of course, a certain degree of variation between panels in the application of protective measures is to be expected. However, holding an entire trial in closed session can dramatically alter the conduct-and the public's perception-of the trial. As with other international and hybrid criminal tribunals where widespread public acceptance of the legitimacy of the verdicts is crucial, over-reliance on closed sessions may do long-term damage to the court's broader goals.[131]

In both the Samardzic and Stankovic cases before the chamber, the prosecutor made a motion to close the evidentiary portion of the main trial to the general public and the press for the purpose of protecting the interests of the injured parties-witnesses.[132] The court provided several reasons for closing the respective trials. First, most of the witnesses in both cases were victims of rape, some of whom were underage at the time the crimes were committed and have since tried to re-establish their lives. Even if protective measures such as screens or voice distortion were used, the substance of their testimonies could reveal details about the witnesses that could result in their identification.[133] This could damage the reputation and jeopardize the privacy of these witnesses.[134]

Second, the witnesses could give names of other alleged perpetrators linked to the crimes of rape and sexual slavery. Third, the witnesses could inadvertently mention the names of other victims who were protected witnesses in the case.[135] Finally, there was concern that the defendant Stankovic could disclose to the public the identities and addresses of the witnesses, as he had threatened to do while still in ICTY custody.[136]

We strongly support the court's desire to preserve the dignity and privacy of witnesses, particularly those who are the victims of sexual violence. We can also appreciate that protective measures used in proceedings before the chamber may be different and, in some cases, more stringent that those used before the ICTY.[137] The War Crimes Chamber convicted Samardzic and Stankovic of crimes against humanity,[138] and there are no indications in the particulars of the cases that the closed sessions undermined the defendants' right to a fair trial.[139] However, in light of the broader purposes of war crimes trials as outlined above, we are concerned by the court's decision to close the main trial proceedings in both of these cases. We wish to emphasize that the protective measures employed by the court must still be used in the least severe manner possible under Bosnian law, particularly since the panel's decision to close the entire trial cannot be appealed until the verdict is issued.[140]

The practice of other panels of the War Crimes Chamber illustrates that less restrictive measures could have been used to address the concern of protecting the privacy of the witnesses. For example, the war crimes trial of Gojko Jankovic (ongoing at this writing) has been held almost entirely in open session, notwithstanding the fact that this case involves similar allegations of sexual violence and includes a number of protected witnesses who testified in the Stankovic and Samardzic cases.[141] For the most part, witnesses testified behind screens in the same room as the defendant, with their identities-but not their testimonies-shielded from the public. Judges have been prompt in intervening when inappropriate questions have been posed. One witness informed the prosecutor that she had not told her husband or her children that she had been raped, so the presiding judge reminded those present in the courtroom of their obligation not to disclose any information that could reveal the witness's identity or undermine her privacy.[142]

In response to the concern that witnesses may identify other protected witnesses, the court could have used a "pseudonym sheet," and parts of the testimony could have been given in private or closed session.[143] With respect to the concern that the defendant Stankovic could reveal the identities of witnesses, we note that at the first session of the main trial the defendant was removed from the courtroom due to disruptive behavior immediately before the first protected witness began her testimony. Although duly summoned, he refused to attend all subsequent sessions until the end of the trial.[144] The validity of this ground for continuing to exclude the public from Stankovic's trial was therefore questionable.[145]

In all cases involving the application of protective measures, the prosecution should only seek the least severe protective measures.[146] We urge the prosecution to avoid making overbroad requests for protective measures, such as those made in the Samardzic and Stankovic cases to close the entire trials to the public. Further, we note that the panel is required to obtain the witness's assent before deciding whether to grant a request for protective measures.[147] While this was done, we are concerned that the witnesses in the Samardzic and Stankovic cases may not have understood the differences between the various protective measures that could have been used.[148] The significant discrepancies in the use of protective measures in the Samardzic, Stankovic, and Jankovic trials underscore the need for panels to ensure that witnesses are fully apprised of the range of appropriate protective measures available in order to obtain their informed consent and implement the least restrictive protective measures possible in accordance with Bosnian law.

2. Witness protection outside of the courtroom

The Witness Protection Unit (WPU) of the State Investigation and Protection Agency is the Bosnian institution responsible for the protection of witnesses outside the courtroom in war crimes and organized crime cases. As outlined in "Looking for Justice," this unit receives financial and technical support from the Registry. During the period of JanuarySeptember 2006, 65 witnesses in war crimes cases received protection, all of whom were assessed as requiring a low level of risk protection.[149] Human Rights Watch was informed that so far SIPA's WPU has been able to provide adequate protection in bringing witnesses to and from the court to provide testimony.[150]

After returning home, witnesses are provided with the contact information for the WPU. If a risk develops, it is up to the witness to contact the WPU to obtain assistance.[151] In the event the risk is imminent, the WPU contacts the police in the area where the witness resides to provide emergency assistance pending the arrival of its protection officers.

Officials inside and outside of the chamber have expressed concern to Human Rights Watch regarding SIPA's capacity to provide long-term protection.[152] The WPU is not in a position to systematically follow up with all protected witnesses, in large part because of inadequate resources.[153] While the onus is on the witness to report any threats he or she receives after testifying, most witnesses lack expertise in assessing risk, and in some cases they may not be immediately aware that their safety is under threat.

Ensuring adequate witness protection is a challenge within the confines of limited resources. The WPU's budgetary constraints highlight the importance of the Registry's ongoing financial and technical support to maintain the current level of protection. We strongly urge the Bosnian authorities to provide additional financial support to the SIPA WPU to bolster its capacity to offer protection to witnesses in the long term.

We also encourage the WPU to engage in more consistent follow up with witnesses after their testimony. This may involve, for example, contacting the police authorities in the vicinity of the witness's home to inform him or her of possible risks to the witness's safety. These authorities could monitor the witness and provide intelligence data to the WPU. On this basis, the unit could make its own determination of any ongoing threats to the witness's safety and take preemptive action, if necessary.[154] Of course, sensitivity should be used when the witness is living in an area where the police may be implicated in crimes that are the subject of proceedings before the chamber.

Further, we note with concern the absence of effective witness protection measures at the cantonal and district court levels.[155] In terms of protection outside of the courtroom, the SIPA WPU provides assistance wherever possible to the cantonal and district courts on an ad hoc basis although there is no legal obligation to do so.[156] The lack of systematic protection means there are significant risks to witnesses, which could undermine war crimes cases brought before the cantonal and district courts. Moreover, the lack of protection for witnesses before these courts could inadvertently jeopardize those protected witnesses who also testify before the chamber. We therefore strongly urge the Bosnian authorities to allocate additional resources to address deficiencies in witness protection in cases before the cantonal and district courts as well.

B. Witness support

The trauma suffered by many witnesses during the conflict in Bosnia illustrates the importance of ensuring adequate psychological support for witnesses involved in war crimes proceedings. Effective witness support can minimize any additional trauma and fear associated with participating in such proceedings. Providing witness support can also, to an extent, address issues relating to witness reluctance and fatigue that may otherwise prevent a witness from providing statements or testimony. There have been several positive developments in the services available for witnesses in the pre- and post-indictment phases, which are outlined below.

1. Pre-indictment

As outlined in "Looking for Justice," the Witness Support Office is responsible for providing support to both defense and prosecution witnesses in war crimes proceedings before the chamber.[157] As a neutral body, it is precluded from intervening in the pre-indictment phase of a potential case. Thus, there was no support offered to potential witnesses during the investigative phase of a case.

To address this gap in support, the Special Department for War Crimes has recently established the position of a "witness liaison officer." Rather than providing psychological support, the primary task of this official is to put victims and potential witnesses in the pre-indictment stage in touch with outside organizations providing mental and physical rehabilitation services whenever needed. One organization has already indicated its willingness to prioritize individuals referred by the department in providing these necessary services.[158]

Upon confirmation of an indictment, the Witness Support Office assumes responsibility for support of those witnesses who will provide testimony in the case, although the liaison officer is expected to play a role in easing the transition and ensuring the smooth transfer of information.[159] In addition to coordinating victims and potential witnesses in accessing mental and physical services, it is anticipated that the witness liaison officer will help promote uniformity within the department in the payment of witness expenses under the law.[160]

2. Post-indictment

The Witness Support Office has provided essential support to a number of witnesses in war crimes trials. During the period from January through September 2006, the section provided support to 372 prosecution and defense witnesses. This number refers primarily to prosecution witnesses since not all cases were in the defense phase by September 2006. The section follows up with witnesses 15 days after they have provided testimony, although in 90 percent of cases, witnesses indicate that they do not require additional psychological assistance.[161]

Many witnesses have identified other medical needs that have not been met since the war including dental work, physical therapy, and access to opticians. To help witnesses address these needs, the section has been working with a local NGO to provide referrals for important physical rehabilitation services. So far, the section has identified 15 witnesses and referred them to this NGO for services.[162]