34. The central factual context of the Prosecution’s appeal is the unprecedented atmosphere of widespread and serious witness intimidation that surrounded the trial. The Trial Chamber acknowledged this in the Trial Judgement, observing that:

[…] throughout the trial, the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses.[1]

35. In circumstances of witness intimidation such as this, it is incumbent upon a Trial Chamber to do its utmost to ensure that a fair trial is possible. Witness intimidation of the type described by the Trial Chamber undermines the fundamental objective of the Tribunal, enshrined in Article 20(1) of the Statute: to ensure that trials are fair, expeditious, and conducted with due regard for the protection of victims and witnesses. Countering witness intimidation is a primary and necessary function of a Trial Chamber. While a Trial Chamber is always required to “provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”,[2] this obligation is especially pressing when outside forces seek to undermine the ability of a party to present its evidence at trial. For the Tribunal to function effectively, Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.