Amicus Curiae Brief Respecting the Decision and Order of the Tribunal of 16 July 1998 requesting that the Tribunal reconsider its decision having regard to the Rights of Witness ?a? to equality, privacy and security of the person and to representation by counsel
IN THE TRIAL CHAMBER OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
RE: PROSECUTOR V. ANTO FURUNDZIJA
Case No. IT-95-17/1-T
The undersigned are women's human rights legal scholars and non-governmental organisations who are working to ensure the substantive and systemic recognition of and accountability for violence against women in the United Nations system and, in particular, to guarantee gender justice in the operation of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. The undersigned have extensive expertise in human rights and humanitarian law, international and domestic criminal law and the gendered aspects of criminal law and criminal prosecutions. The undesigned also have considerable and valuable knowledge and expertise relating to the criminal trial process and its relationship to women's inequality.
The undersigned hereby respectfully request, pursuant to Tribunal Rule 74, leave to file the following Amicus Curiae Brief.
The Importance of this Amicus Curiae Brief to the Proper Determination of the Case
This Amicus Curiae Brief relates to the Decision and Order of the Tribunal of 16 July 1998 in which the Tribunal ordered, with reference to the rights of the accused to a fair trial but without reference to the rights of Witness "A" to equality, privacy and security of the person, that the trial be re-opened and that Witness "A" be available for cross-examination "on any medical, psychological or psychiatric treatment or counselling received by Witness "A"". The Tribunal also ordered that the Prosecutor "disclose any documents in its possession relating to the Material and relevant to the issue of any medical, psychological or psychiatric treatment or counselling received by Witness "A" after May 1993".
- The Amici recall that the Trial Chamber held in its Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic that the Tribunal is expected to comply with recognized standards of fundamental human rights and the Tribunal has a duty pursuant to Rules 75 and 79 of the ICTY Rules of Procedure to take measures to protect victims and witnesses. The rights and interests of victims and witnesses in this regard must be balanced against, but not subsumed by, the rights and interests of the accused to a fair trial. In its Decision, the Trial Chamber ruled that "a fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses".
Reference Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraphs 33 and 55.
Rules of Procedure of the ICTY, Rules 75, 79
- In response to a motion by the Defence in this case, the Tribunal has ordered the production of potentially highly discriminatory, intimate and prejudicial confidential information regarding Witness "A", the disclosure of which may cause profound harm to Witness "A" and to the criminal trial process. The Amici are concerned that the Tribunal failed to consider the motion by the Defence in this matter with due regard to the duties of the Tribunal as expressed in its Decision in Tadic referred to above.
Reference: Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraphs 33 and 55.
Rules of Procedure of the ICTY, Rules 70(f), 75, 96
- The Amici are, in particular, concerned that:
- The Trial Chamber was not alerted to nor did it consider the discriminatory assumptions and attitudes toward women victims of sexual assault which underlie requests for disclosure of otherwise irrelevant confidential information in cases of sexual assault. These assumptions may underlie the Defence request in this case and may have unwittingly informed the Tribunal's Decision and Order of 16 July 1998. Further, the Trial Chamber was not alerted to nor did it consider the fact that the effort by Defence counsel to obtain confidential information is historically one tactic in a long line of tactics based upon discriminatory attitudes toward women and rejected by this Tribunal in Rule 96;
- The Trial Chamber arrived at its Decision and Order without hearing substantive evidence or argument with respect to the balancing of the rights of the accused with the international principles concerning the rights of Witness "A" to equality, privacy and security of the person. Further the Trial Chamber arrived at its decision without the benefit of Witness "A" being provided with the opportunity to have counsel represent her rights and interests in maintaining the confidentiality of the information to which she will be subject to cross-examination. Since the interests of Witness "A" are distinct from both those of the defence and the prosecutor, she should have been given the opportunity to select independent representation to put her rights properly before the Tribunal;
- The Trial Chamber was not presented with evidence and therefore did not consider in its Decision and Order the harm to victims which would result in the disclosure of intensely personal records and in the broad cross-examination of witnesses in respect of their medical, psychological and psychiatric records. Nor did the Trial Chamber consider in its Decision and Order the extent to which its ruling might affect the participation of victims in bringing perpetrators to justice before the ICTY and the Tribunal's mandate pursuant to Rule 75 of the ICTY Rules of Procedure to protect victims and witnesses;
- The Trial Chamber arrived at its Decision and Order without considering evidence regarding the societal interest in protecting the relationship between victims of trauma and their counsellors and without considering explicit United Nations statements stressing the importance of counselling and treatment in the psychological and emotional healing process for victims of sexual assault; and
- The Decision and Order of 16 July 1998 was arrived at by a procedure which is inconsistent with leading national jurisdictions that have directly considered the issue of disclosure of confidential records and the necessity to protect the rights of the witness to the confidentiality of those records. In addition, the Trial Chamber's Decision and Order was considerably broader than would be acceptable in these jurisdictions.
- In accordance with the above concerns, this Brief will submit that: (1) gender discrimination fundamentally informs requests for disclosure of confidential records in cases of sexual violence;(2) requests for disclosure are most often founded upon irrelevant and prejudicial rape myths and discriminatory attitudes toward women who are victims of sexual assault; (3) the cross-examination of survivors of sexual violence risks unwarranted and severe intimidation and revictimization of these witnesses, thus jeoparidzing both their mental and physical integrity; and(4) the disclosure of counselling records profoundly affects (a) women's equal rights to access to justice; and (b) the goal of bringing perpetrators of sexual violence in armed conflict before the two International Criminal Tribunals.
- As a result of the above concerns, the Amici respectfully urge the Tribunal to reconsider and rescind its Decision and Order of 16 July 1998 and to:
- hold a hearing, taking into account Rules 75, 70(f) and 96(ii), prior to the commencement of the cross-examination of Witness "A" in order to consider the rights of Witness "A" to equality, privacy, security of the person and to witness protection;
- ensure that Witness "A" is fully informed of her rights to equality, privacy and security of the person and to protection as a witness;
- appoint Witness "A" and the holder of the records, Medica, counsel if they wish to be represented.
II. Understanding Discrimination against Women in the Prosecution of Sexual Violence
Sexual Violence and Sexual Inequality
- Sexual violence is a crime which is predominantly committed against women, including during times of armed conflict. Moreover, the violence is committed against these women because of their gender, in addition to their ethnic origin or religion. Although sexual violence in armed conflict is often a tool used to subordinate a group of people, it is in every case a means of subjugating, objectifying and dehumanizing women. For this reason, the Amici have argued before the ICTR and the ICTY that a failure by the Tribunals to respect the dignity and autonomy of victims of sexual violence amounts to a denial of equal justice to women. Such a failure deprives women, in this case women from the former Yugoslavia, of the recognition and vindication of their suffering that is an essential component of their ability to rebuild their lives and their self-esteem on a foundation of equality and dignity.
Reference:Amicus Curiae Brief of the Coalition for Women's Rights in Conflict Situations submitted to the International Criminal Tribunal for Rwanda in the case of the Prosecutor v. Jean-Paul Akayesu; Amicus Curiae Brief submitted by Rhonda Copelon, Felice Gaer, Jennifer Green and Sara Hossain in the matter of protective measures for victims and witnesses in the case of the Prosecution v. Dusko Tadic.
The Tribunal's Duty to Respect and Consider the Equality Rights of Witnesses
- The Amici respectfully submit that prior to taking further evidence from Witness "A" in this matter, the Tribunal consider whether the taking of this evidence violates international principles concerning the equality rights of Witness "A".
- The Amici recall that the Trial Chamber held in its Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic that the Tribunal is expected to comply with internationally recognized standards of fundamental human rights. This would include the internationally recognized right of non-discrimination.
Reference:Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraph 25
- The rights of women to equality and to non-discrimination are guaranteed by numerous international instruments and customary international law.
Reference:Charter of the United Nations, Articles 1(3) and 55(c)
Universal Declaration of Human Rights, Article 2
International Covenant on Civil and Political Rights, Article 24
Convention on the Elimination of Discrimination Against Women, Articles 2, 5
United Nations Declaration on the Elimination of Violence Against Women
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, paragraph 3, adopted by General Assembly Resolution 40/34 (29 November 1985)
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 3
Askin, Kelly Dawn, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997: Kluwer Law International, The Hague) at 230-231, 236.
- It is clear in international law that non-discrimination principles are to be applied in international criminal trial processes. For example, non-discrimination clauses are found in all four Geneva Conventions. More recently, the Statute creating the International Criminal Court states that the application and interpretation of law by the Court must be consistent with internationally recognized human rights, "and be without any adverse distinction founded on grounds such as gender", among other grounds.
Reference:Article 21, Rome Statute of the International Criminal Court, U.N. Doc. A/Conf.183/9 (17 July 1998).
- In addition, the United Nations has undertaken to mainstream gender into all of its mechanisms:
"The equal status of women and the human rights of women should be integrated into the mainstream of United Nations system-wide activity. These issues should be regularly and systematically addressed through relevant United Nations bodies and mechanisms".
Reference:Vienna Declaration and Platform of Action, para. 37
U.N. Doc. A/Conf. 157/23 (12 July 1993)
- Having regard to the above international principles recognizing and guaranteeing the rights of Witness "A" to equality and non-discrimination and the Tribunal's Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, the Amici respectfully submit that the Tribunal is obligated to consider the disclosure of confidential information in the context of the equality rights of Witness "A" and, accordingly, is bound to reconsider its decision of 16 July 1998 before the commencement of cross-examination of Witness "A".
Reference:Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraph 25
Insidious Discrimination in the Criminal Trial Process: The Rape Myths
- Efforts by defence counsel to obtain confidential records and to cross-examine witnesses on these records is one of the latest in a long history of discriminatory practices used by defence counsel in rape trials. The Rules of this Tribunal, in particular Rule 96(ii) , but also Rules 70(f) and 75 are designed to prevent such discriminatory practices. These Rules should be applied in this case to prevent the discriminatory treatment of women survivors of sexual violence, in this case Witness "A".
Reference: Rules of Procedure of the ICTY, Rules 70(f), 75 and 96(ii)
- The Rules in the ICTY statute, the academic literature, domestic legislation and the highest levels of national courts have recognized that the prosecution of sexual violence against women has been fraught with pervasive and institutionalized gender discrimination.
Reference: Rules 70(f), 75 and 96 of the Rules of Procedure of the ICTY; Consolidated Statutes of Canada, Criminal Code, S.C. 1997, ch. 30 (introduced as Bill C-46, "An Act to amend the Criminal Code (production of records in sexual assault proceedings)", ss. 278.1 to 278.91 entered into force May 12, 1997) (Hereafter referred to as Bill C-46); Evidence Act 1995, sections 126G-L, New South Wales Consolidated Acts (Australia) available at www.austlii.edu.au/legis/nsw/consol_act/ea199580/s126g.html; Draft Evidence (Confidential Communications) Amendment Bill 1998 (draft Bill to amend South Australia's Evidence Act of 1929); M. Torrey, "When Will We Be Believed? Rape Myths and the Idea of Fair Trial in Rape Prosecutions" (1991) 24 University of California Davis Law Review 1013; Bushby K. "Discriminatory Uses of Personal Records in Sexual Violence Cases" 9 Canadian Journal of Women and the Law 148 (1997); Kelly K., "You Must Be Crazy if You Think You Were Raped" 9 Canadian Journal of Women and the Law 178 (1997); Capoccia, R. "Piercing the Veil of Tears: The Admission of Rape Crisis Counselor Records in Acquaintance Rape" 68:1355 Southern California Law Review (1995); For legislation and jurisprudence in the United States, please refer to the citations contained in the Amicus Curiae Brief of the Center for Civil and Human Rights, Notre Dame University.
- The differential and discriminatory treatment of women who appear before courts as complainants in sexual assault trials is based upon a foundational set of myths which have pervaded our "common sense" for centuries. These myths include the discriminatory presumptions that women and child victims of sexual violence are uniquely prone to lie, are susceptible to suggestion by others, and to hysteria and emotional upheavals which substantially call into question their credibility as witnesses.
Reference: See decisions of Canadian Supreme Court of Canada Justice L'Heureux Dubé in R v. Seaboyer,  2 S.C.R. 577 (dissent) and R. v. O'Connor,  4 S.C.R. 411 (dissent) [Note that, although Justice L'Heureux-Dubé was in dissent in each of these cases, her approach was incorporated into the amendments to the Canadian Criminal Code (supra), and the approach of the majority in O'Connor was rejected by Parliament] ; Women's Legal Education and Action Fund, submissions to the Standing Committee on Justice and Legal Affairs, Review of Bill C-46, (March 1997); McCrimmon M., "Developments in the Law of Evidence: The 1991-92 Term, Truth, Fairness and Equality" 4 Supreme Court Law Review 225; Bushby, supra; Kelly, supra; Torrey, supra; Capoccia, supra.
- In an attempt to overcome the unequal treatment of women victims of rape, it has been acknowledged by courts in Canada and other jurisdictions that, historically, the laws of criminal evidence and procedure which governed the conduct of sexual assault trials were informed by discriminatory myths and stereotypes about women. In particular, as explained by Supreme Court of Canada Justice L'Heureux-Dubé, rape myths have been used to undermine the credibility of victims of sexual violence:
Historically, a host of factors were deemed relevant to the credibility of complainants in sexual assault trials that did not bear on the credibility of witnesses in any other trial and which functioned to the prejudice of victims of sexual assault. In Seaboyer, one quarter I discussed at length the hurdles that complainants faced in sexual assault trials due to these unfounded presumptions. They include myths that deem certain types of women "unrapable" and others, because of their occupations or previous sexual history, unworthy of belief. These myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault. They suggest that drug use or dependence on social assistance are relevant to the issue of credibility as to consent. They suggest that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event. Furthermore, they are built on the suggestion that women, out of spite, fickleness or fantasy and despite the obvious trauma for victims in many, if not most, sexual assault trials, are inclined to lie about sexual assault. The net result has been that sexual assaults are, and continue to be, underreported and underprosecuted.
Reference: R v. Osolin,  4 S.C.R. 595 at 624-625 (per L'Heureux Dubé in dissent). See also the decisions of L'Heureux Dubé in R v. Seaboyer,supra, and R. v. O'Connor, supra.
- Rule 96 of this Tribunal's Rules of Procedure recognizes the need to protect women who are victims of sexual violence from some of these discriminatory biases which pervade the prosecution of sexual assault. Rule 96 refers to "Evidence in Cases of Sexual Assault" and specifically states that no corroboration of the victim's testimony is required, consent shall not be allowed as a defence under certain circumstances, and that evidence of prior sexual conduct of the victim shall not be admitted into evidence.
Reference: E.g. Criminal Code sections 276-277, R.S.C. 1985, ch. C-46 (Canada), makes it impermissible to challenge the credibility of a complainant by adducing evidence of her sexual reputation. See also Crimes Act, 1900 ss. 409 (New South Wales, Australia) for a similar amendment. In the United States, Fed. R. Evid. 412 makes evidence of past sexual behaviour generally inadmissible in federal cases. See also State statutes: 725 Ill. Comp. Stat. Ann. 5/115-7 (1997), Mo. Ann. Stat. s. 491.015 (1996), N.J. Stat. Ann. ss. 2A:84A-32.1 (1996). See Bronitt, Simon and McSherry, Bernadette, "The Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the "Rape Shield" (1997) 8(2) Criminal Law Forum 259 at ft. 3.
- After defence counsel were prohibited by evidentiary rules such as Rule 96 of the ICTY Rules of Procedure from attacking rape victims by raising rape myths concerning prior sexual history, defence counsel began to pursue other tactics. These tactics were grounded in dehumanizing and discriminatory attitudes toward women, especially by capitalizing upon the myth that women are inherently unreliable and prone to suggestion. Defence counsel have pursued this line of attack through requests for victims' counselling records, a matter that has received considerable attention in Canada.
Reference: Bronitt and McSherry, supra, at 260-262 and 265; Bushby, K. "Discriminatory Uses of Personal Records in Sexual Violence Cases" 9 Canadian Journal of Women and the Law 148 (1997); Evidence (Confidential Communications) Amendment Bill 1998 Report (South Australia) at 1?2: "In recent years, the law of sexual assault 1/4 has been changed by Parliaments and, to a lesser degree the judiciary, to provide more protections for the complainants of sexual assault. Statutory provisions have [lists changes in laws with respect to prior sexual conduct evidence, consent, cross?examination in preliminary hearings, abolished corroboration, and modified the recent complaint doctrine]1/4". Not surprisingly, defence counsel have sought ways in which to circumvent these restrictions. One of the main ways in which that has been done in recent times is for the defence to seek to undermine the credibility of the complainant by gaining access to the psychiatric or treatment history rather than the sexual history of the complainant".
- Similarly, defence counsel in domestic jurisdictions have sought the disclosure of counselling records on the basis of the unfounded and prejudicial assumption that the very fact that a woman has sought counselling suggests that she is mentally unstable and, therefore, an unreliable witness. The pervasiveness of this discriminatory assumption is reflected by the fact that the Canadian legislation specifically prohibits disclosure simply on the basis of the fact that a woman has received counselling
Reference: Bill C-46, supra; see also R v. Osolin, supra, at 625
- Because rape mythology is so much a part of the "common sense" of the sexually unequal cultures in much of the world, many legal professionals fail to realize that most of these disclosure claims rest on discriminatory generalizations. The assumption underlying most disclosure requests and orders is that victims of sexual violence as a class - overwhelmingly women and children - are inherently uncreditworthy so must be subjected to additional and extraordinary credibility testing.
Reference: McCrimmon, supra; R v. Osolin, supra; Women's Legal Education and Action Fund, supra, at p.27;
- The empirical evidence has borne out the prevalence of these prejudicial myths and assumptions. In Canada, for example, one study found that, of 140 cases in which production of personal records was ordered over an approximately 6 year period, 120 cases involved sexual assault and almost all involved the records of women witnesses. Requests for personal records are simply not regularly made in other domestic criminal trials and in relation to other victims and witnesses. Victims in other criminal trials are not subjected to the same oppressive and exhaustive credibility testing to prove them worthy of justice, redress and the law's protection.
Reference: Study prepared by Diane Oleskiw for the National Association of Women and the Law, supra. This study was for the time period 1990-September 1996. The Amici updated this study which is attached in the Appendix to this Brief.
- Similarly, the Amici note that in the trial of Furundzija before the Tribunal, defence counsel has sought to impeach only Witness "A" on the basis of her credibility in relation to her medical, psychological and psychiatric treatment and counselling records. The defence did not cross-examine nor request disclosure of personal records of Prosecution witness Sulejman Kavazonic, despite his testimony that he "underwent medical treatment for about 20 days, because...[he] had some mental problems".
Reference: Transcript of Proceedings, 15 June 1998, page 522, lines 10-13.
- More importantly, the Defence counsel explicitly attempts to subvert the evidence of Witness "A" by relying on a rape myth which has been prohibited by Rule 96. At least three points in his closing argument, defence counsel argues that the evidence of Witness "A" should be discounted because her evidence is not corroborated. Defence counsel argues that "unlike most cases that you will try, there is no corroborating evidence for Witness "A". None". Later defence counsel states: "Here we are talking very much about witness memory, witness testimony, no corroboration".
Reference: Transcript of Proceedings, 22 June 1998, p.676, lines 5-6
Transcript of Proceedings, 22 June 1998, p.684, lines 3-4
Transcript of Proceedings, 22 June 1998, p.693, lines 13-15
- Having regard to the above statements by the defence and to the prejudicial and discriminatory attitudes toward rape victims pervasive in sexual assault proceedings generally, the Amici urge the Trial Chamber to reconsider the characterization of Witness "A" and her counselling treatment by the Defence. In particular, the Amici urge the Trial Chamber to question, with an awareness of sexual equality and gender discrimination, the implicit biases which underlie the defence's attack on the credibility of Witness "A", the Defence's unfounded allegations that Witness "A" suffered from "suppressed memory" and the inferences which the defence wishes to be drawn from the fact that Witness "A" suffered "psychological trauma", and to Order that Witness "A" not be subjected to further discrimination through cross-examination.
Reference: Transcript of Proceedings, 22 June 1998, p.
Transcript of Proceedings, 22 June 1998, p.684,
Defendant's Motion to Strike the Testimony of Witness "A" due to Prosecutorial Misconduct or, in the Event of a Conviction, for a New Trial (9 July 1998), p. 1
III. Irrelevance: The Practice of Sexual Inequality in Law Distorts the Criminal Justice Process
- In addition to the fact that requests for disclosure of confidential information and counselling records are very often motivated by discriminatory and sexist attitudes and beliefs, the relevance of such information and records must be seriously called into question. In Canada, this irrelevance has been recognized by Canadian legislation and by Supreme Court of Canada Justice L'Heureux-Dubé, whose ruling below is reflected in the Canadian legislation drafted after her decision:
...the assumption that private therapeutic or counselling records are relevant to full answer and defence is often highly questionable, in that these records may very well have a greater potential to derail than to advance the truth-seeking process:
...medical records containing statements made in the course of therapy are both hearsay and inherently problematic as regards reliability. A witness's concerns expressed in the course of therapy after the fact, even assuming they are correctly understood and reliably noted, cannot be equated with evidence given in the course of a trial...In a trial, a witness is sworn to testify to the particular events in issue. By contrast, in therapy, an entire spectrum of factors such as personal history, thought, emotions as well as particular acts may inform the dialogue between therapist and patient. Thus, there is a serious risk that such statements could be taken piecemeal out of the context in which they were made to provide a foundation for entirely unwarranted inferences by the trier of fact.
...[therapy] is not a fact finding exercise. Consequently, the vast majority of information noted during therapy sessions bears no relevance whatsoever or, at its highest, only an attenuated sense of relevance to the issues at trial. Moreover, as I have already noted elsewhere, much of this information is inherently unreliable and, therefore, may frustrate rather than further the truth-seeking process.
Reference: R v. O'Connor,  4 S.C.R. 481-482 & 498
R v. Osolin,  4 S.C.R. 595 at 622-623
For other non-Canadian sources discussing irrelevancy see: Commonwealth v. Fuller (1996), 667 N.E. (2d) 847 (S.C. Mass.) "[t]he likelihood that the records will contain information that would held a defendant avoid an erroneous conviction may be characterized as remote".
- The purpose of counselling is inimical to the truth-seeking processes of the criminal justice system. Notes which are taken in the counselling process are not taken down for the purposes of, or with attention to, accuracy or detail concerning the events described. Nor is the speaker concerned that descriptions be accurate or detailed. The notes are made for the eyes of the therapist only and not with a view to their being reviewed by others for purposes outside of the therapy relationship. Pertinent questions about facts are often not asked during the counselling session: the subject matter of therapy is the emotional landscape, not the factual basis giving rise to the need for the counselling.
- The Trial Chamber in the case of the Prosecutor v. Jean Paul Akayesu at the ICTR recognized the inherent unreliability of unsworn evidence, in particular when it is used to impeach the credibility of a witness. In discounting the inconsistencies between the evidence at trial and the evidence contained in previous unsworn statements made by witnesses, the ICTR Trial Chamber held that:
"[m]oreover, the statements were not made under solemn declaration and were not taken by judicial officers. In the circumstances, the probative value attached to the statements is, in the Chamber's view, considerably less than direct sworn testimony before the Chamber, the truth of which has been subjected to the test of cross-examination".
Reference: The Prosecutor vs. Jean-Paul Akayesu, Case No.ICTR-96-4-T , Decision of the Trial Chamber (September 2, 1998), para. 137.
- Moreover, defence counsel in Canada have been explicit about the fact that disclosure of confidential information and records has often not been sought for the relevancy of the information nor to protect the rights of the accused, but rather to humiliate and intimidate the witness and thereby derail the trial.
Reference: Feldthusen, Bruce, "The Best Defence is a Good Offence: Access to the Private Records of Sexual Assault Complainants under the O'Connor Guidelines and Bill C-46" (1997) Can. Bar Rev. 537 at 546; Kelly; supra .
- Finally, the intersection of sexual inequality and disclosure of confidential information severely distorts the criminal justice process when the fact that a witness has a counselling history or a mental health record is virtually automatically deemed to be relevant to her credibility and a justification for the disclosure of confidential information.
- The issue of the attack on the credibility of victims of sexual violence on the basis of their psychiatric history has been addressed by Supreme Court of Canada Justice L'Heureux Dubé:
...the competence of witnesses to testify is normally presumed and challenges to the reliability of evidence on the basis of psychiatric condition of the witness rarely form part of the trial process. Unless we are to resurrect, consciously or unconsciously, the myth that complainants in sexual assault trials are inherently more untrustworthy than witnesses in any other trial where credibility is an issue, challenges to a witness's testimony on mental or psychiatric grounds must be measured against the same standard of relevance in sexual assault trials as in the trial of any other offence. Thus, even a request, let alone an order, for the production of a complainant's medical records should be an extraordinary event.
Reference: R v. Osolin, supra, at 628
- In the case before the Tribunal, Witness "A" was suffering from Post Traumatic Stress Disorder. Witness "A" is not unique in this regard. Many, if not all, victims appearing before this Tribunal have suffered severe trauma and, therefore, may often be suffering from PTSD. Such victims are not confined to victims of sexual violence. If the fact that a witness suffers from PTSD triggers an inquiry into counselling - which can be a lifeline for survivors - it should apply to all witnesses and it would negate the protections of this Tribunal's Rules which specifically authorize the Registry to provide supportive services. Beyond that, PTSD often does not affect the memory of traumatized witnesses in any significant way. In many cases, PTSD causes sufferers to have heightened memories of the events which caused the psychological trauma. In other words, it is a disorder which may in fact increase their reliability as witnesses.
Reference: Please refer to in-depth discussion of PTSD in the Amicus Curiae Brief of the Center for Civil and Human Rights, Notre Dame University.
- Although other witnesses before the ICTY and the ICTR have suffered from PTSD, this is the first case in which the Tribunal is being asked to act on its duty to analyse the impact of the syndrome on the ability of witnesses to testify. In the submission of the Amici, the question with respect to PTSD and any other psychiatric disorder is whether the trauma is so severe that the witness is not competent to testify. PTSD alone does not trigger this concern. Rather, there must be some clear evidence in the behaviour or testimony of the witness (and not simply some inconsistencies in the witness' testimony or memories years after the event) that gives rise to a concern about competence. If such a concern is raised, it should be determined, not by delving into highly personal and potentially inflammatory records of past treatment, but rather through the appointment of a qualified professional to conduct the necessary tests. There is no issue of competence in this case and thus no warrant to permit the defendant to engage in a fishing expedition for the purposes of more broadly attacking the credibility of the witness.
Reference: Please refer to in-depth discussion of PTSD in the Amicus Curiae Brief of the Center for Civil and Human Rights, Notre Dame University.
IV. Protecting the Counselling Relationship
- To permit defence counsel access to counselling records and other confidential information or to cross-examinations about such records is inconsistent with the Tribunal's Rules and the international recognition of the critical need of traumatized survivors for counselling in general and in connection with the giving of testimony itself.
Reference: Rules of Procedure of the ICTY, Rule 34
- Rule 34 of the Tribunal's Rules of Procedure states that the Victims and Witnesses Unit shall be set up with qualified staff to "provide counselling and support" for victims and witnesses, "in particular in cases of rape and sexual assault". Therefore, victims of sexual assault who also agree to serve as witnesses are put in an untenable situation while under the care of the Victims and Witnesses Unit: if they are counselled by the Unit's qualified staff, they risk potential disclosure of their counselling records under the precedent set by the Trial Chamber's Decision and Order of 16 July 1998.
Reference: Rules of Procedure of the ICTY, Rule 34
- The United Nations General Assembly and the Tribunal's Rules encourage women who have suffered sexual violence to seek counselling. General Assembly resolution 50/192 of December 1995 urges all States and relevant organizations to support the provision of "necessary medical and psychological care to victims of rape within the framework of programmes to rehabilitate women and children traumatized by war, as well as the provision of protection, counselling and support to victims and witnesses", as well as expresses its concern for the welfare of those who have suffered extreme trauma and "require" psychosocial and other assistance.
Reference: "Rape and Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia", General Assembly Resolution 50/192 of 22 December 1995, paras. 7 and 8. Similar calls for the provision of counselling are also found in "Rape and Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia, Report of the Secretary General", UN Doc. A/52/497 (17 October 1997), para. 4.
- There is an obvious public interest in the promotion of counselling for women who have suffered sexual violence, as these women can better heal with assistance and support. The relationship between a counsellor and her client should be based on trust and be as conducive to healing as possible. However, if victims are not guaranteed confidentiality within a counselling relationship, they will likely be inhibited in their discussions and unable to receive the full benefit of that counselling. In fact, disclosure of records could prove to be a substantial disincentive for victims to even use counselling services in the first place.
Reference: Bronitt and McSherry, supra, at 266, citing Annie Cossins, "Contempt or Confidentiality, 21(5) Alternative L.J. 223 (1996)
- Victims are likely to be further traumatized by the knowledge that the accused may find out about the effects of the abuse or that personal information that the victim may not have even told to her closest friends and family will be disclosed in court if they undertake counselling. The recovery process can thereby be interrupted or stalled completely and victims face the possibility of suffering long-term psychological harm.
- If the Tribunal develops a practice of disclosing the confidential information of women who are victims of sexual violence, many women will simply choose not to report sexual violence against them, will not agree to testify before the Tribunal or will not obtain counselling. It is submitted that production applications will operate to deny women who have been sexually assaulted the right to both seek counselling and participate as a witness to the prosecution of her perpetrator. Women will, therefore, be forced into making choices unrelated to their best interests, and the public interest, in order to avoid revictimization in the court process.
- It is submitted that, for these reasons, the precedent set by wide disclosure orders such as Disposition B(1) of the Trial Chamber's Decision and Order of 16 July will have a chilling effect on the number of female victims of sexual assault willing to participate as witnesses in prosecutions at the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Such a deterrence to participation in criminal justice proceedings will result in both a violation of the rights of victims of sexual violence to equal access to justice and in the subversion of the very purpose and mandate of the Tribunal.
V. The Equal Right of Witness ? A ? to Privacy
- The right to privacy is protected under Rule 75 of the ICTY Rules of Procedure, article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights. Any interference with the right to privacy under Rule 34 requires the Tribunal to engage in balancing. Similarly, article 17 of the ICCPR requires the "precise balancing of the circumstances in a given case, paying regard to the principle of proportionality".
Reference: Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993: N.P. Engel, Publisher, U.S.A.), page 293, para. 13.
- Moreover, "privacy protects the special, individual qualities of human existence, a person's manner of appearance, his or her identity. Identity includes [one's] feelings and thoughts, one's specific past".
Reference: Nowak, supra, p. 295, para. 17.
- The Supreme Court of Canada has stated in R v. O'Connor that the right to privacy includes the right to maintain control over a biographical core of personal information, and is grounded in the need for physical and moral autonomy and is essential for the well-being and dignity of individuals. It also noted that the essence of privacy is that once invaded, for example by disclosure, it can seldom be regained. In the context of counselling records, there is the additional factor that the counselling relationship can be compromised by public exposure. These considerations lead to the presumption against ordering production of private records in sexual violence cases.
Reference: R v. O'Connor, supra. These comments were made by L'Heureux-Dube J, speaking on behalf of a minority of three justices and adopted by general agreement by the majority judges.
- The importance of the right to privacy for sexual assault victims within the context of this Tribunal has been noted by the General Assembly, stressing "the need for the protection of the rape victims and the provision of effective guarantees of privacy and confidentiality of the rape victims, and desirous of facilitating their participation in the proceedings of the International Tribunal and ensuring that further traumatization will be prevented".
Reference: "Rape and Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia", General Assembly Resolution 50/192 of 22 December 1995, introductory para. 7 (emphasis added).
- Male as well as female survivors of the atrocities within the jurisdiction of this Tribunal suffer trauma and need counselling. However, more women than men are victims of sexual assault, and therefore more women than men seek medical treatment and counselling following a sexual assault. The fact that medical and counselling records are routinely targeted by defence counsel in cases of sexual assault and not in other cases, results in the privacy rights of women witnesses being more often violated than those of male witnesses. As well, since it is primarily women whose privacy rights are violated in this way, the equality rights of women who are victims of sexual violence are also directly implicated and violated.
- The victim's right to privacy was not addressed by the Trial Chamber in its Decision and Order of 16 July. The failure to consider Witness A's right to privacy presents a serious concern with respect to: 1) the finding in paragraph 18 of the Decision and Order that any evidence relating to the medical, psychiatric or psychological treatment or counselling that this witness may have received should have been disclosed to the Defence - this statement is made without any discussion of the balancing of the right of the accused to a fair trial and the right of Witness "A" to privacy; 2) the Order for further disclosure of documents relating to the issue of medical, psychological or psychiatric treatment or counselling received by Witness "A" after May 1993 (Disposition, B(1)) is also made without reference to Witness "A"'s right to privacy.
VI. The Equal Right to Security of the Person
- The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights set out the right to security of the person in articles 3 and 9 and respectively. Security of the person is a right which must be taken into account before confidential records are disclosed, as disclosure could unintentionally reveal information about the victim which identifies her whereabouts, even if names and addresses are redacted. This information can provide enough information for the accused to locate the victim through her support people. In the Tribunal's Decision and Order of 16 July, the Tribunal did not address the issue of whether the additional information ordered disclosed from the Prosecutor would affect the victim's right to security of the person.
VII. Balancing the Rights of the Accused and the Rights of Witnesses
- The decision of this Tribunal in Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic stated that the rights of accused persons to a fair trial must be balanced against the protection of victims and witnesses, especially victims of sexual assault.
Reference: Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraph 50.
- Having recognized the applicability of internationally recognized standards of fundamental human rights for both accused persons and victims, the Tribunal must, therefore, balance these rights. This does not mean, however, that the rights of either accused persons or victims who appear before the Tribunal can be violated, dismissed or subsumed by the rights of the other.
Reference: Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses in the Prosecutor v. Dusko Tadic, paragraph 33 (10 August 1995) paragraph 25
- The challange of balancing rights has been given considerable attention in Canada. The Supreme Court of Canada has held that, when approaching the balancing of rights, no particular right presumptively trumps any other constitutional right and that all constitutional rights implicated in a given case must be reconciled:
"A hierarchical approach to rights, which place some over others, must be avoided both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict...Charter principles require a balance to be achieved that fully respects the importance of both sets of rights".
Reference: Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835, per Lamer C.J. at 87
- The Amici submit that the Tribunal must balance the rights of the accused and the rights of Witness "A". Respect for the fair trial rights of the accused, however, does not mean that the defence is entitled to pursue any and every tactic simply because it may be effective.
- Moreover, the Amici submit that where disclosure of confidential information is fundamentally justified by sexual stereotyping, there is no "conflict" between the rights of the accused and the rights of witnesses. In this case, the Defence has had full opportunity to test the credibility of Witness "A" during cross-examination and any further cross-examination risks perpetuating the rape myths and undermining both the truth-seeking function of the international criminal trial process and the meaning of a "fair trial" as defined by thisTribunal.
- For the above reasons, the Amici respectfully submit that the Tribunal reconsider and rescind its Decision and Order of 16 July 1998 and accordingly:
- hold a hearing taking into account Rules 75 , 70(f) and 96(ii) prior to the commencement of the cross-examination of Witness "A" in order to fully consider the rights of Witness "A" to equality, privacy, seucirty of the person and to protection as a witness;
- ensure that Witness "A" is fully informed of her rights to equality, privacy and security of the person and to protection as a witness; and
- appoint Witness "A" and the holder of the records, Medica, counsel if they wish to be represented
All of which is respectfully submitted.
Working Group on Engendering the Rwandan Criminal Tribunal
International Women's Human Rights Law Clinic
City of University of New York Law School
Center for Constitutional Rights
Supporting Organizations and Individuals
Avega Barakabaho (Rwanda)
Club Maman Sportive (Rwanda)
Hope Clinic (Rwanda)
International Centre for Human Rights and Democratic Development (Canada)
International Federation of Women Lawyers (FIDA) (Kenyan Chapter)
Jody Ranck, Research Fellow, Human Rights Fellow, University of California at Berkeley
Rwandan Women Net (Rwanda)
Women's International League for Peace and Freedom - Toronto Branch (Canada)
 e.g. General Romeo Dallaire, to name one well-known example.