One of the most dramatic areas in which the rights of the accused and the fairness of trials may be challenged is that of the protection of victims and witnesses. The Trial Chamber's obligation to ‘ensure a trial is fair’ has, as we have already seen, two particular aspects: the ‘full respect for the rights of the accused’ and the ‘due regard for the protection of victims and witnesses’. What happens when these elements – fairness, the rights of the accused, and the protection of victims and witnesses – come into conflict? How is fairness rhetorically used to mediate the rights of the accused and this protection of victims and witnesses – and what are the practical outcomes of using fairness in such a way? In this chapter, I examine the main mechanisms used by Chambers in order to ensure the safety of witnesses. Although there are a variety of protective measures, this chapter will particularly focus on procedural mechanisms of the use of delayed disclosure and redactions to disclosure, and the potential use of written evidence in place of oral evidence.

While the rights of the accused are adversely affected by protective measures for witnesses, this is both permissible under the relevant Statutes and required for these trials to continue. This case study is therefore unusual in that it provides a clear example where rights can justifiably be curtailed to protect trial fairness. Nonetheless, this is still a situation where there is considerable controversy about the appropriate weight to provide to fairness, rights and witness protection; and as I will show, several examples reveal an increasing extension of the protection of witnesses even in situations where the rights of the accused will be curtailed, with trial fairness provided as the reason to justify this and little consideration shown to the rights of the accused. In this chapter, I show that there has been a significant expansion – through jurisprudence, and then changes to the relevant Rules of Procedure and Evidence – to the use of redactions and limits on the provision of relevant disclosure, on the basis of witness protection, but where little regard has been provided to the rights of the accused.