¹ Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, UN Doc. IT-94-1-T (Aug. 10, 1995) [hereinafter Decision].

² Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AJIL 235, 236 (1996).

³ Judges McDonald and Vohrah constituted the majority of the chamber.

⁴ Nov. 4, 1950, 213 UNTS 221, 228 [hereinafter European Convention on Human Rights].

⁵ Dec. 16, 1966, 999 UNTS 171, 176 [hereinafter ICCPR].

⁶ Article 21 is titled “Rights of the accused” and 21(2) specifies that the accused is entitled to a “fair and public hearing.” See Statute of the Tribunal, UN Doc. S/25704, annex (1993), 32 ILM 1192, 1198 (1993).

⁷ Article 22, 32 ILM at 1199, provides: “The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.” Leigh, supra note 2, at 236, comments that this language is “unfortunately not free from ambiguity.”

⁸ The Commission of Experts was established pursuant to SC Res. 780 (Oct. 6, 1992), 31 ILM 1476 (1992). For its final report, see UN Doc. S/1994/674 (1994).

⁹ See Decision, paras. 17–26. For the Tribiunal’s Rules of Procedure and Evidence, as amended, see UN Doc. IT/32/Rev.7 (1996). See especially Rule 69 in Part Five, Pre-Trial Proceedings, and Rule 75, in Part Six, Proceedings before Trial Chambers.

¹⁰ Decision, para. 23.

¹¹ SC Res. 827 (May 25, 1993), 32 ILM at 1203, 1204.

¹² International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, First Annual Report, UN Doc. A/49/150, para. 11 (1994), cited in Decision, para. 18. See also Decision, paras. 17–26.

¹³ ICCPR, supra note 5, Art. 14(3)(e), 999 UNTS at 177; European Convention on Human Rights, supra note 4, Art. 6(3)(d), 213 UNTS at 228; American Convention on Human Rights, Nov. 22, 1969, Art. 8(2)(f), 1144 UNTS 123, 147–48.

¹⁴ Similar language is used in the ICCPR, supra note 5, Art. 14(1), 999 UNTS at 176.

¹⁵ 166 Eur. Ct. H.R. (ser. A) at 3 (1989).

¹⁶ For example, Jarvie v. Magistrates Court of Victoria at Brunswick, 1995 Vict. Rep. 84 (Sup. Ct.); Regina v. Taylor, 1994 T.L.R. 484 (Ct. App.); Regina v. Watford Magistrates Court ex parte Lenman, 1992 T.L.R. 285 (Q.B.); Regina v. DJX, SCY, GCZ, 91 Crim. App. 36 (Eng. 1990); Regina v. Hughes [1986] 2 N.Z.L.R. 129 (Ct. App.). In Regina v. Hughes, President Cooke of the New Zealand Court of Appeal (dissenting) and in Jarvie, Judge Brooking listed some American cases where witness safety was a factor to be taken into account. Siegfriedt v. Fair, 982 F.2d 14 (1st Cir. 1992); Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1991); United States v. Rangel, 534 F.2d 147 (9th Cir. 1976); United States v. Ellis, 468 F.2d 638 (9th Cir. 1972); United States v. Crovedi, 467 F.2d 1032 (7th Cir. 1972); and cases from state courts, including Jackson v. State, 544 N.E.2d 853 (Ind. 1989); Castle v. Texas, 748 S.W.2d 230 (Crim. App. 1988); People v. Stanard, 365 N.E.2d 857 (N.Y. 1977).

¹⁷ Decision, para. 77.

¹⁸ Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704, para. 108 (1993), 32 ILM 1159, 1185.

¹⁹ The first subsequent decision in which the guidelines laid down in the decision of August 10, 1995, were applied concerned the request for anonymity by a witness who had been a guard at Trnopolje Camp, where he had committed serious crimes for which he was convicted by a court in Bosnia-Herzegovina. His identity was not revealed. The prosecution asserted that he was a key witness and feared reprisals against his family by his coperpetrators if it became known that he had given evidence to the Tribunal. The chamber ordered that his identity be disclosed “not less than thirty days in advance of a firm trial date.” Prosecutor v. Tadic, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness L, UN Doc. IT-94-1-T (Nov. 14, 1995).

²⁰ Decision, para. 24.

²¹ See Regina Graycar & Jenny Morgan, The Hidden Gender of Law 339–41 (1990), on the likely low level of false complaints of rape.

²² E.g., Jennifer Temkin, Rape and the Legal Process (1987); Judith Rowland, Rape: The Ultimate Violation (1986).

²³ Radhika Coomaraswamy, Preliminary Report on Violence against Women, its causes and consequences, UN Doc. E/CN.4/1995/42, para. 281 (1994).

²⁴ See, e.g., Charlotte Bunch, Women’s Rights as Human Rights: Towards a Revision of Human Rights, 12 Hum. Rts. Q. 486 (1990); Hilary Charleswordi, What are “Women’s Human Rights”?, in Human Rights of Women: National and International Perspectives 58 (Rebecca Cook ed., 1994); C. M. Chinkin, Women’s Rights as Human Rights under International Law, in Understanding Human Rights 553 (Connor Gearty & Adam Tomkins eds., 1996).

²⁵ Leigh, supra note 2, at 237.

²⁶ Statute of the Tribunal, supra note 6, Art. 5(g), 32 ILM at 1193–94. In its indictments issued on June 26, 1996, the prosecution alleged 62 counts of crimes committed against women. They included crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war relating especially to rape, torture, outrages upon personal dignity, persecution, willfully causing great suffering, enslavement and inhuman treatment. See Prosecutor v. Gagovic, Review of Indictment Pursuant to Article 19(1) of the Statute, Case IT-96-23-1 (June 26, 1996). On “forcible sexual penetration,” see id., para. 4.8. On the long history of rape in armed conflict, see Susan Brownmiller, Against Our Will: Men, Women and Rape (1975).

²⁷ The Tribunal’s press release accompanying the indictment of June 26 states: “The indictment is of major legal significance as it is the first time that sexual assaults have been diligently investigated for the purpose of prosecution under the rubric of torture and enslavement as a crime against humanity.” Press release CC/PIO/093–E (The Hague, June 27, 1996).

²⁸ Rule 96 of the Rules of Procedure and Evidence, supra note 9, provides: “In cases of sexual assault: … (iv) prior sexual conduct of the victim shall not be admitted in evidence.”

²⁹ Rule 96 also provides, in cases of sexual assault, that

(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 ….

(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 ….