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INFORM ATIO N GUID E

ON VICTIM PARTICIPATI ON IN THE


PROCEEDINGS OF TH E SPECI AL
TRIBUN AL F OR LEBAN ON

STL Official Translation


Drafted by Jérôme de Hemptinne (Leal Officer)
Published and printed by the Special Tribunal for Lebanon
Special Tribunal for Lebanon
Dokter van der Stamstraat 1
2265 BC Leidschendam
The Netherlands
Contents

Foreword

Glossary of abbreviations and acronyms

I. About the STL _____

1. How was the Tribunal established?


2. What categories of crime fall under the jurisdiction of the
Tribunal?
3. What are the stages in the proceedings before the
Tribunal?

II. Origins of victim participation_____________________

III. Definition of the concept of victim and victim participating


in the proceedings_______________________________

1. What is meant by a “victim”?


2. What is meant by a “victim participating in the
proceedings”?

IV. The roles of the victim_____ ____

1. In what capacity can a victim appear before the Tribunal?


2. Can a victim seek compensation before the Tribunal for
the harm he has suffered?

V. The rights of a victim____________________________

1. What are the rights of a victim participating in the


proceedings during the investigation?
2. What are the rights of a victim participating in the
proceedings during the trial?
3. What are the rights of a victim participating in the
proceedings during sentencing?

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4. What are the rights of a victim participating in the
proceedings during the appeals phase?
5. What are the rights of a victim participating in the
proceedings in the event of a trial in absentia?

VI. Victim representation ____________________________

1. Does a victim have to be represented by a legal


representative?
2. Can a victim choose his own legal representative?
3. Can several victims be represented by a common legal
representative?
4. Can a victim receive financial assistance to pay for his
representation?

VII. The Victims’ Participation Unit____________________

1. What are the roles of the Victims’ Participation Unit?


2. How is the neutrality and independence of the Victims’
Participation Unit guaranteed?

VIII. Arrangements for victim participation ____________

1. How are applications for participation submitted to the


Tribunal?
2. In what language(s) should the application for
participation be submitted?
3. At what stage in the proceedings can a victim submit or
withdraw an application for participation?
4. Can a victim appeal a decision dismissing his application
for participation?

IX. Protection measures for victims____________________

1. How does the Tribunal ensure the protection of victims?


2. What are the roles of the Victims and Witnesses Unit?

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Foreword

This guide presents an overall view, in question and answer format, of


the status of victims and their rights in the proceedings at the Special
Tribunal for Lebanon. It is primarily intended for victims seeking to
understand the position they hold in the Special Tribunal’s proceedings.
It may also be of assistance to legal representatives of the victims
appearing before the Tribunal. Finally this guide aims to raise
awareness in civil society on the main issues surrounding the rights of
victims.

It sets out victim participation in nine chapters. After a brief summary


of the background to the establishment of the Tribunal and a
description of its jurisdiction together with the stages governing its
proceedings (I), it traces the origins of the system for participation at
the Tribunal (II). The guide then defines the concept of victim (III)
before examining his roles (IV) and rights in the proceedings (V),
together with the principles governing his representation (VI). It also
describes the role of the Victims’ Participation Unit (VII) and the
concrete arrangements for victim participation in the proceedings
(VIII). The guide concludes with some general considerations on the
subject of victim protection measures (IX).

In order for the reader to have a clearer picture of the underlying


principles of the procedure, it is recommended that the “Explanatory
Memorandum” by the Tribunal’s President and the “Procedure of the
Special Tribunal for Lebanon – a snapshot” be read in conjunction with
this guide.

The guide does not have any official, legal or interpretative status.

In this guide, for he, please read he/she.

The references in brackets and in italics in the headings refer to the


relevant provisions of the Agreement on the establishment of the
Tribunal, its Statute and Rules of Procedure and Evidence.

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The Rules, the “Explanatory Memorandum” and the Snapshot can be
found on the Tribunal’s website at: www.stl-tsl.org

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Glossary of abbreviations and acronyms

Agreement Agreement between the UN and the


Lebanese Republic on the establishment
of a Special Tribunal for Lebanon

Hariri Case The case involving the attack carried out


against former Prime Minister Rafiq
Hariri and others

Appeals Chamber Appeals Chamber of the Special Tribunal

Trial Chamber The Trial Chamber of the Tribunal

Security Council The UN Security Council

ICC International Criminal Court

Registrar Registrar of the Tribunal

Judge(s) Judge(s) at the Tribunal

Pre-Trial Judge Pre-Trial Judge of the Tribunal

UN United Nations

Parties Prosecution and Defence

Prosecutor Prosecutor of the Tribunal

RPE Rules of Procedure and Evidence

Secretary-General Secretary-General of the UN

Statute Statute of the Tribunal

Tribunal Special Tribunal for Lebanon

ad hoc Tribunals International Criminal Tribunals for the


former Yugoslavia and Rwanda and the
Special Court for Sierra Leone

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I. About the STL
1. – How was the Tribunal established?

1. Following the attack against former Prime Minister Rafiq


Hariri, on 13 December 2005 the Government of Lebanon requested
the UN to establish a “tribunal of an international character”. As a
result of that request, on 29 March 2006 the Security Council mandated
the Secretary-General to conduct negotiations with the Government of
Lebanon to establish such a tribunal (resolution 1664 (2005)). This
negotiating process culminated in the signing of the Agreement for the
establishment of the Tribunal, to which the Statute is attached, by the
Government of Lebanon and the UN on 23 January and 6 February
2007 respectively. However, due to institutional impediments, the
Lebanese authorities were unable to ratify the Agreement.

2. In the light of this impasse and on the basis of the coercive


powers conferred upon it under Chapter VII of the Charter of the UN,
on 30 May 2007 the Security Council adopted resolution 1757 (2007),
bringing into force the provisions of the Agreement and the Statute, and
calling upon the Secretary-General, in concert with the Lebanese
authorities, to establish the Tribunal.

3. In accordance with resolution 1757, between June 2008 and


February 2009, the Secretary-General took the necessary measures for
the establishment of the Tribunal and, in particular, selected and
appointed, where applicable in consultation with the Lebanese
authorities, the Judges, the Prosecutor, the Head of the Defence Office
and the Registrar.

4. On 1 March 2009, the Tribunal, which is located in


Leidschendam (the Netherlands), was officially opened. Three weeks
later, on 20 March 2009, the Judges adopted the RPE, which govern the
structure and operation of the Special Tribunal, the Rules of Detention
and the Directive on the Assignment of Defence Counsel.

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2. – What categories of crime fall under the jurisdiction of
the Tribunal (Articles 1(1) & 4(1) of the Statute & Rules 11,
12 & 17 of the RPE)

5. The Tribunal’s jurisdiction can be applied to three categories


of crimes: the attack of 14 February 2005 against Rafiq Hariri
and others; other attacks which occurred between 1 October 2004 and
12 December 2005; and attacks which occurred on any later date.

i) The first category of crime – namely the attack against Rafiq


Hariri – automatically falls under the Tribunal’s jurisdiction.
Indeed, within two months of the Prosecutor taking up his
post, the Tribunal shall request the Lebanese Court seized with
the Hariri case to:

a) defer to its competence;


b) hand over all the records relating to it; and
c) submit a list of persons detained in connection with
the case.

ii) The second category of crimes shall fall within the jurisdiction
of the Tribunal if two conditions are satisfied. Those crimes
must be:

a) connected with the attack carried out against Rafiq


Hariri; and
b) of a nature and gravity similar to that attack.

iii) The third category of crime shall fall within the jurisdiction of
the Tribunal if:

a) the two conditions set out in paragraph ii) above are


met; and
b) the UN and Lebanon have accepted the jurisdiction
of the Tribunal with the consent of the Security
Council.

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3. – What are the stages in the proceedings before the
Tribunal?

6. The proceedings in force at the Tribunal can be divided into


seven stages as shown in the diagram below: i) investigation;
ii) confirmation of the indictment; iii) pre-trial phase; iv) first
appearance and plea; v) trial; vi) sentencing; and vii) appeal and
review. In addition, the Tribunal may conduct proceedings in absentia
in certain circumstances.

Prosecutor Investigation

Indictment
Pre-Trial Judge
Pre-Trial phase

First
Trial Chamber
appearance

Guilty plea Not guilty plea

Trial to
Sentencing
determine guilt

Acquittal Conviction

Sentencing

Appeals
Appeal
Chamber

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Review
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II. Origins of victim participation
7. At the international level, the role and status of victims have
changed considerably since the ad hoc Tribunals were established. At
those Tribunals, victims have no right to participate in the trial in
person, nor do they have the power to seek compensation for the harm
suffered. They appear only as witnesses and are forced to turn to
national courts to seek remedy for their suffering.

8. Concerned about the marginal role of victims and drawing on


the civil law tradition, the authors of the ICC Statute attempted to
remedy this situation by providing victims with the right to present,
under certain conditions, their “views and concerns” at all stages in the
proceedings and to seek compensation for the harm they have suffered.

9. Following on from the ICC system and Lebanese criminal


procedure – which establishes the civil party system – the authors of
the Statute of the Tribunal adopted Article 17 which focuses solely on
the rights of victims. This provision is worded as follows: “Where the
personal interests of the victims are affected, the Special Tribunal shall
permit their views and concerns to be presented and considered at
stages of the proceedings determined to be appropriate by the Pre-Trial
Judge or the Chamber and in a manner that is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial.
Such views and concerns may be presented by the legal representatives
of the victims where the Pre-Trial Judge or the Chamber considers it
appropriate.” As for the RPE, they endeavour to give concrete
expression to these requirements by granting some powers to victims,
similar to those they enjoy in civil law systems, whilst at the same time
striving to ensure the effectiveness and fairness of the legal
proceedings. It is in this spirit that they allow the victim to participate
in all stages of the criminal proceedings (apart from the investigation),
under the strict control of the Pre-Trial Judge and the competent
Chambers.

10. Unlike the ICC Statute and Lebanese criminal procedure, the
system of the Tribunal does not go so far as to afford a right to
compensation to the victims. As with the ad hoc Tribunals, victims

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must turn to national judges or any other competent institution to obtain
compensation for the harm suffered.

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III. Definition of the concept of victim and
victim participating in the proceedings
11. To preserve the rights of the accused and ensure the
effectiveness of the proceedings, the RPE distinguish between the
concepts of “victim” (1) and “victim participating in the
proceedings” (2).

1. –What is meant by a “victim”? (Rule 2 of the RPE)

12. A victim is deemed to be “a natural person who has suffered


physical, material or mental harm as a direct result of an attack within
the Tribunal’s jurisdiction.”

13. Legal persons do not therefore enjoy the status of victim


before the Tribunal. In order to be granted the victim status, applicants
need to show prima facie evidence that: (i) they suffered harm, (ii) the
attack which provoked their harm is within the Tribunal’s jurisdiction,
and (iii) the harm they allegedly suffered is causally linked to the
crimes charged against the accused.

2. – What is meant by the concept of “victim participating


in the proceedings”? (Rules 2 & 86 of the RPE)

14. A “victim participating in the proceedings” is a “victim of an


attack within the Tribunal’s jurisdiction who has been granted leave by
the Pre-Trial Judge to present his views and concerns at one or more
stages of the proceedings after an indictment has been confirmed.”

15. Thus not all victims can necessarily participate in the trial. In
order to preserve the rights of the accused and to ensure the efficiency
of the proceedings, they must have been authorised to do so by a Judge
after hearing the Parties. The Judge shall take into account the
following criteria, inter alia, when ruling on this issue:

i) whether the applicant is a victim pursuant to the definition provided


by the RPE;
ii) whether the applicant’s personal interests are affected;
iii) whether the applicants seeks to express his views or concerns;

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iv) whether the applicant’s participation would be prejudicial or
inconsistent with the fair trial rights of the accused.

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IV. The roles of the victim
16. A victim may be heard as a witness or/and as a victim (1),
although he is not entitled to seek compensation for the harm suffered
before the Tribunal (2).

1. – In what capacity can a victim appear before the


Tribunal? (Rules 134, 145, 146, 152 & 165 of the RPE)

17. The victim may first of all be heard as a witness. In this case,
as with any witness, his participation in the proceedings is dependent
on a number of elements, including the fact that:

i) a victim must be invited by the Parties or by a Judge to


participate in the legal proceedings;
ii) he may not decline this invitation, or he shall be liable to a
charge of contempt of the Tribunal;
iii) he must swear an oath, and, if he does not tell the truth, he
may be subject to criminal proceedings for contempt of court;
iv) he may only make statements under examination and cross-
examination by the Parties;
v) he may not request the assistance of a legal representative
during his court appearance;
vi) he may not lay claim to be informed about the progress of the
proceedings, even if they affect him personally; and
vii) he may not hear evidence given by other victims in the
courtroom before his testimony.

18. However, if a victim is permitted to participate in the


proceedings, he may also be heard – either in person or through a legal
representative – as a victim. If giving evidence in person, he shall be
afforded all the rights set out in Chapter V below.

2. – Can a victim seek compensation before the Tribunal


for harm suffered? (Article 25 of the Statute and Rule 86(G))

19. A victim cannot seek compensation for the harm he has


suffered before the Tribunal.

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20. A victim must turn to the national courts or other competent
institutions to seek compensation. He may make use of a judgement
resulting in a conviction handed down by the Tribunal before said
courts or institutions, whether or not he has been identified as a victim
by the Tribunal. For the purposes of such an action, the judgement shall
be deemed “final and binding as to the criminal responsibility of the
convicted person.”

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V. The rights of a victim
21. After the confirmation of an indictment (1), a victim has
important rights. He can express himself in person both during the trial
(2) and at the sentencing stage (3) and also during the appeals
proceedings (4). A victim also has wide-ranging rights in the event of
proceedings in absentia (5).

1. – What are the rights of a victim participating in the


proceedings during the investigation? (Article 11 of the
Statute & Rule 86(A) of the RPE)

22. A victim has no rights at this initial stage in the proceedings.


Unlike the Lebanese Code of Criminal Procedure, which allows a
victim to act as a civil party and to initiate a public action, the RPE
permit victims to participate in the proceedings only after confirmation
of the indictment.

23. In accordance with Article 11 of the Statute, as a


representative of the public interest, the Prosecutor decides proprio
motu whether or not to set in train the criminal proceedings in
accordance with his chosen prosecution strategy. At most, the victim
may transmit to the Prosecutor any information he considers useful to
determine the truth; and the Prosecutor is then free to decide how this
information may be used.

2. – What are the rights of a victim participating in the


proceedings during the trial? (Article 17 of the Statute &
Rules 86(B) & (C), 87(A) & (B), 143, 144(B), 146, 147(B),
150(D) & 168(A) of the RPE)

24. During the trial, a victim participating in the proceedings has


significant powers to present his “views and concerns”. They include:

i) making an opening statement at the commencement or end of


the trial;
ii) summoning witnesses to appear;
iii) giving evidence;
iv) examining and cross-examining witnesses;

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v) requesting the Judges to ask specific questions to the accused;
and
vi) filing motions and briefs.

25. In order to exercise the afore-mentioned powers, a victim


participating in the proceedings must be kept informed of the progress
of the proceedings, and, in particular, when a judgment rendered by the
Tribunal is pronounced. Unless the Pre-Trial Judge or the competent
Chamber decides otherwise in the interests of justice, he shall also have
access to all the documents filed by the Parties during the trial, together
with the pre-trial case file.

26. However, the participation of the victim is strictly regulated to


ensure that it is not “prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.” To this end:

i) the victim participating in the proceedings must be expressly


authorised to exercise the afore-mentioned powers by the Pre-
Trial Judge or Chamber with the necessary jurisdiction;
ii) the number of victims invited to submit their “views and
concerns” may be limited;
iii) unless the Pre-Trial Judge or a Chamber decide otherwise, the
victim participating in the proceedings shall do so through a
legal representative;
iv) usually one or more legal common legal representatives may
be appointed to represent the interests of the victims;
v) the victim participating in the proceedings may only question
the accused through a Judge; and
vi) the victim participating in the proceedings shall not be
permitted to testify, except if the Chamber considers that this
is in the interests of justice.

3. – What are the rights of a victim participating in the


proceedings during sentencing? (Rule 87(C) of the RPE)

27. The proceedings before the Tribunal are divided into two
stages: the first aims to establish whether the accused is guilty or
innocent, the second, in the event the accused is found guilty, involves
sentencing.

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28. Victim participation is limited during the second phase: a
victim may only give details of the impact of the crime on him if
authorised to do so by the Trial Chamber. He is therefore not entitled to
comment on sentencing. In order to ensure that the rights of the accused
are fully safeguarded and to avoid any form of revenge, only the
Prosecutor, who represents the public interest, is permitted to call for a
sentence.

4. – What are the rights of a victim participating in the


proceedings during the appeals phase? (Rule 87(D) of the
RPE)

29. The RPE simply provide that “a victim [...] may participate in
a manner deemed appropriate by the Appeals Chamber” subject to its
authorisation.

30. In theory, a victim participating in the proceedings may thus


exercise all the rights afforded to him by the RPE during the trial,
unless the Appeals Chamber decides otherwise. In practice, the scope
of his participation at this stage will vary according to the nature of the
appeals proceedings, which may take place either in written form or
orally.

5. – What are the rights of a victim participating in the


proceedings in the event of a trial in absentia? (Rule 107 of
the RPE)

31. During the proceedings in absentia, a victim participating in


the proceedings may exercise all the rights he would have had during a
trial held in the presence of the accused.

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VI. Victim representation
32. In principle, a victim has to be represented by a legal
representative during the proceedings (1). He may choose the one he
considers competent, provided that person fulfils certain conditions as
set out in the RPE (2). If the victim is indigent, he may receive
financial assistance and a lawyer will be assigned to him by the
Registrar (3).

1. – Does a victim have to be represented by a legal


representative? (Rule 86(C) of the RPE)

33. In principle, a victim has to be represented by a legal


representative during the proceedings, unless the Pre-Trial Judge or the
competent Chamber has decided otherwise.

2. – Can a victim choose his own legal representative?


(Rule 51(C)(i) of the RPE)

34. Subject to the power of the Pre-Trial Judge to ask the


Registrar to appoint one or more common legal representatives, a
victim may choose his own legal representative, provided that the
person meets certain criteria set out in the RPE, namely:

i) being on the list of highly qualified legal representatives held


by the Registry;
ii) meet the criteria concerning the qualifications of defense
counsel;
iii) have indicated their availability and willingness to be assigned
by the Tribunal to any victim

3. – Can several victims be represented by a common legal


representative? (Rules 51(C) & 86(C) of the RPE)

35. The Pre-Trial Judge may decide to limit the number of victims
entitled to express their views and concerns in proceedings. In
principle, he may also order the Registrar to appoint one or more
common legal representatives for multiple victims, except where this
results in a conflict of interest.

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4. – Can a victim receive financial assistance to pay for his
representation? (Rule 51(C) of the RPE)

36. Normally a victim who has been declared indigent may


receive financial assistance from the Registrar to ensure that his
interests are represented before the Tribunal.

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VII. The Victims’ Participation Unit
37. A victim participating in the proceedings may receive support
from the Victims’ Participation Unit. Although having a wide-ranging
role (1), the Unit must ensure that it maintains its independence and
neutrality vis-à-vis all the victims participating in the proceedings and
their representatives (2).

1. – What are the roles of the Victims’ Participation Unit?


(Rules 51(A),(B) & (C) of the RPE)

38. The Victims’ Participation Unit is responsible for three main


functions. Its tasks are:

i) to ensure that: a) the victim or his legal representative is kept


informed of his rights and of developments in the proceedings
of concern to him and; b) that any documents relating to the
victim are communicated to him;
ii) to provide the victim or his legal representative with any
material and legal assistance required; and
iii) to ensure that the legal representatives provide a good service.

2. – How is the neutrality and independence of the


Victims’ Participation Unit guaranteed? (Rule 51 (C) & (F)
of the RPE)

39. To safeguard the neutrality of the Victims’ Participation Unit


vis-à-vis all the victims participating in proceedings before the Tribunal
and avoid any conflict of interest, its members:

i) shall not provide any advice on the facts of the case; and
ii) “shall not take any instruction from a victim or be involved in
any manner in a specific case or proceeding before the
Tribunal such that the independence of the Unit or of the
Registry may be, or may be perceived to be, compromised.”

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VIII. Arrangements for victim participation
40. Arrangements for victim participation shall be laid down in a
practice direction which will determine specifically: how to address an
application for participation to the Tribunal (1), the language to be used
(2) and the stage in the proceedings at which such a request may be
made or withdrawn (3). Furthermore, the RPE give a victim who is not
authorised to participate in the proceedings the right to appeal (4).

1. – How are applications for participation submitted to the


Tribunal?

41. The application for participation must be sent to the Victims’


Participation Unit. It should include the following information:

i) the full identity of the victim;


ii) a summary of the alleged criminal acts which the victim feels
he has suffered;
iii) brief details of the harm suffered; and
iv) any evidence in support of the application.

42. For the purposes of applying to the Tribunal, victims are


requested to complete an application for participation provided on
request by the Victims’ Participation Unit or available from the
Tribunal’s website at the following address: www.stl-tsl.org

43. If necessary, the Victims’ Participation Unit may provide legal


or logistical support to victims wishing to lodge an application for
participation with the Tribunal.

2. – In what language(s) should the application for


participation be submitted?

44. The application for participation must be made in one of the


three official languages of the Tribunal, which are Arabic, English or
French.

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3. – At what stage in the proceedings can a victim submit
or withdraw an application for participation? (Rules 86 (A)
& 87 of the RPE)

45. A victim may submit or withdraw his application for


participation at any stage in the proceedings, after the confirmation of
an indictment.

4. – Can a victim appeal a decision dismissing his


application for participation? (Rule 86(D) of the RPE)

46. A victim or his legal representative can appeal the decision


dismissing his application for participation within 7 days from the
filing date of the decision.

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IX. Protection measures for victims
47. The prosecution and judgment of acts of terrorism require the
Tribunal to be able to take all necessary measures to ensure the
protection of victims and witnesses called to appear before it (1). To
that end, a Victims and Witnesses Unit has been established within the
Registry (2).

1. – How does the Tribunal ensure the protection of


victims? (Rules 50, 93, 115, 116 & 124 of the RPE)

48. According to the RPE, the Pre-Trial Judge and the Trial and
Appeals Chambers may take measures to protect a victim or a witness
before, during and after he has testified before the Tribunal.

49. These measures principally include:

i) non-disclosure of the identity of a witness or a victim until the


moment he is placed under the authority of the Tribunal;
ii) the giving of testimony by video-conference link;
iii) holding a closed session;
iv) facial or voice-distortion during testimony;
v) relocating a witness or a victim in a third country; or
vi) testifying anonymously (without disclosing the victim’s
identity to the public and the accused).

2. – What are the roles of the Victims and Witnesses Unit?


(Rule 50 of the RPE)

50. A Victims and Witnesses Unit has been established within the
Registry. It has two main functions:

i) formulating strategies for the protection of victims and


witnesses; and
ii) providing them with all the necessary administrative, logistic,
psychological and medical assistance.

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