Anonymous witnesses in International Criminal Law
Anonymous witnesses in International Criminal Law

Summary/Abstract: Witness anonymity as a protective measure leads to a conflict between two rights – the defendant’s right to confront and cross-examine witnesses, on the one hand, and the witness’s right to protection. How witnesses before international criminal courts faced threats and intimidation, and their role in international criminal trials is important and indispensable, the question arises as to whether they should be granted anonymity in certain cases and under certain conditions. So far, in the practice of international criminal courts, anonymity has been granted to witnesses only in the Tadić case before the ICTY. Although other chambers of the ICTY considered the application of this protective measure, and the chambers of the ICC as well, anonymity was not granted to any witness. The main reason is that it is considered that the application of this protective measure is not in accordance with the rights of the defendant. Today, when examples of the use of anonymous witnesses can be found in the practice of certain national courts, which has been confirmed in the practice of the European Court of Human Rights, their use in the practice of international criminal courts can be reconsidered. If the use of anonymous witnesses is allowed before international criminal courts, it must be a last resort and an exceptional measure. Strict conditions for its application must be met first of all, and a balance must be established with the rights of the accused, which are limited due to the use of anonymous witnesses. If the use of anonymous witnesses is not allowed, the consequence may be an acquittal due to lack of evidence, because witnesses refuse to testify out of fear, which has already happened in the practice of international criminal courts. The paper provides a brief historical overview of the use of anonymous witnesses, as well as a brief presentation of national solutions and decisions of national courts regarding their use. The protective measures provided by the acts of international criminal courts, which can serve as a basis for the use of anonymous witnesses, are analyzed. Various positions presented in the Tadić case before the ICTY when deciding on the use of anonymous witnesses, as well as some positions presented before the ICC, are also analyzed. Finally, some guidelines are provided that may be useful for granting anonymity status if this protective measure is to be applied in international criminal justice.

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