Judge Claude Jorda, Presiding
Judge Mohamed Shahabuddeen
Judge Almiro Simões Rodrigues

Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of:
12 May 1999





The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman


TRIAL CHAMBER I (hereinafter "the Trial Chamber) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter "the Tribunal"),

NOTING the Decision of 25 March 1999 in respect of the appearance of General Morillon,

NOTING the Application of 15 April 1999 (hereinafter "the Application) of General Morillon (hereinafter "the Witness") for assistance and protective measures ,

NOTING the correspondence from the Legal Counsel of the United Nations dated 10 May 1999,

NOTING the Judgement of the Appeals Chamber of 29 October 1997 on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,

NOTING the provisions of Articles 20, 22 and 29 of the Statute of the Tribunal and Rules 54, 75, 79 and 89 of the Rules of Procedure and Evidence (hereinafter "the Rules"),

CONSIDERING that the Witness asserts that his testimony might endanger not only his own safety but also that of the French civilian and military personnel assigned to the territory of the Former Yugoslavia,

CONSIDERING that the Witness also asserts that if no protective measures were to be granted, his testimony might disclose information whose disclosure would run contrary to the essential security interests of France,

CONSIDERING also that the Witness bases his Application on French law on "national defence secrecy" and the duty of "discretion of public servants",

CONSIDERING that the Application also relies on the Judgement of the Appeals Chamber of 29 October 1997 and the Decision of Trial Chamber I of 11 November 1997 which was issued on the basis of Rule 70 of the Rules,

CONSIDERING that the Witness requests that six protective measures be granted,

CONSIDERING that the Legal Counsel of the United Nations has informed the Trial Chamber that the Secretary-General of the Organization was lifting the immunity from jurisdiction which the Witness enjoys insofar as it is necessary for him to be able to testify in this case and, to that end, has authorised him to testify freely and to answer the questions he might be asked about the elements of any of the crimes covered in Articles 2 to 5 of the Statute and other matters which the Trial Chamber might deem relevant in respect of the accused’s individual criminal responsibility or of attenuating or mitigating circumstances; that such authorisation has been given subject to measures being taken; that such measures are identical, or closely akin, to those requested in the Application,

CONSIDERING that the Trial Chamber first notes that the Witness has been summoned as the former UNPROFOR commander-in-chief; that from this viewpoint and without needing to review specifically that person’s conditions of service, the Trial Chamber must first take care not to risk affecting the proper conduct of peace-keeping operations both from the point of view of the United Nations and, in particular, of its Secretary-General, and also from the point of view of the States contributing troops,

CONSIDERING that the Trial Chamber recalls that, pursuant to Article 29 of the Statute, States are bound to cooperate with the Tribunal "in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law" and, in particular, for "the taking of testimony and the production of evidence"; that this obligation is of a general nature; that the Tribunal could not accept that the limits to such cooperation be established unilaterally under conditions other than those set down by the Judges within the context of the Statute and the Rules; that, in this respect, the aforementioned Judgement of the Appeals Chamber of 29 October 1997 presents the criteria and appropriate manner that action is to be taken in this respect,

CONSIDERING that the Trial Chamber notes that the Witness or the authorities to whom he answered at the time of the facts in question could in no manner rely on Rule 70 of the Rules; that this provision which inter alia refers to "information which has been provided to the Prosecutor Sor which is in the possession of the accusedC on a confidential basis and which has been used solely for the purpose of generating new evidence" is, in fact, not applicable to the case in point as none of the conditions required for such application has been satisfied,

CONSIDERING that the Trial Chamber also notes that, in accordance with its Decision of 25 March 1999, the Witness has been summoned to testify only about "the matters of which he had knowledge that occurred within the scope of his then mission and that relate to the acts with which the accused has been charged",

CONSIDERING that it consequently deems that the Witness must essentially inform the Trial Chamber of information he has in this respect, testify about the matters relating to the crimes ascribed to the accused in the indictment or about matters relating to the accused himself and should not be asked to speak about the sources of that information which directly affects the safety of the United Nations peace-keeping forces or those of the States of which the Witness is a national,

CONSIDERING however that the Trial Chamber notes that the Judges of the Appeals Chamber concluded in their Judgement of 29 October 1997 after having reviewed the relevant international case-law and inter alia referred expressly in paragraph 62 of that Judgement to the Judgement of the International Court of Justice in the case known as The Corfu Channel case in a sense clearly different from the one set out in the Application, that a State could, exceptionally, refuse to disclose documents which might prejudice the interests of its national security provided, in particular: 1) that it is acting in good faith; and 2) that it proves to a Judge of the Trial Chamber designated to that end that the said documents put its security at risk and have no real importance for the case; that, in the case in point, and except for those documents which the Witness might consider appropriate to provide, the Trial Chamber does not request that others be disclosed; that moreover the authorisation granted by the Secretary-General of the United Nations does not, in and of itself, constitute an authorisation to disclose documents,

CONSIDERING however that the Trial Chamber deems on its own authority and in view of the arguments put forth by the Witness in his Application and inter alia on the basis of the position he occupied in Bosnia and Herzegovina at the time the acts ascribed to the accused were committed and the terms of the letter from the Legal Counsel of the United Nations that the explanations which the Witness will provide to the Trial Chamber might endanger the safety of civilian or military personnel on duty on the territory of the Former Yugoslavia and might create difficulties for the military and humanitarian action of the United Nations and France in that region,

CONSIDERING that the Trial Chamber emphasises its power pursuant to the provisions of Article 22 of the Statute and Rules 54, 75 and 79 of the Rules to ensure protection for witnesses; that those provisions must be interpreted as justifying that measures be taken both in respect of a witness and of the information in his possession when the disclosure thereof, or of its source, might have serious repercussions for the safety of this witness or a third party,

CONSIDERING lastly that the Trial Chamber, in accordance with Sub-rule 89(D) of the Rules, notes that it reserves the right to exclude any evidence if its probative value is substantially outweighed by the need to ensure a fair trial,

CONSIDERING that, under these conditions, the Trial Chamber deems it necessary to grant the

Application as noted in the disposition of this Decision,


ORDERS General Philippe Morillon to appear as a witness before the Trial Chamber on 16 June 1999 at 10.00 hours and states that the hearing may, if necessary, continue on the first appropriate following day;

ORDERS that the Witness’ testimony be given in closed session;

STATES that the testimony shall inter alia cover:

1) the state of the armed forces present (number, location, weaponry, changes during the period covered by the indictment);

2) the principal subjects of the meetings in which the witness participated: arrangement of cease-fires; movement of humanitarian assistance; if necessary, investigations into crimes observed, whoever the assumed perpetrators;

3) the chain or chains of command of the armies in central Bosnia and, in particular, the authority of the military commanders over the military, military police, para-military and other armed forces in the region and the possible role of the political leaders in that area;

4) the Witness’ perception of the accused’s personality;

STATES that the Witness shall first make a spontaneous statement and that, although he may assist himself by relying on notes, he may not read a prepared statement; and INVITES the Witness to note that his spontaneous statement may not exceed two and one-half to three hours insofar as possible and that the parties shall each have about one hour to put their questions to him;

ORDERS that the scope of the questions asked by the Prosecutor and the Defence be limited to the scope of the Witness’ initial statement with the Trial Chamber reserving for itself the right to settle any dispute in that respect;

AUTHORISES the Witness to state to the Judges that the requested information is, wholly or in part, confidential;

AUTHORISES the representatives of the United Nations Secretary-General and the French Government to be present in the courtroom while the Witness testifies with a maximum of two persons per delegation and to address the Trial Chamber, if necessary outside the presence of the Witness and/or the parties, and to present any reasoned request which they believe necessary for the protection of the higher interests they have been assigned to protect;

RECALLS that both the Statute of the Tribunal and its Rules guarantee a fair trial and that the provisions of Sub-rule 89(D) of the Rules permit the Trial Chamber to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial;

ORDERS the Prosecution and the Defence not to disclose to any third parties, whoever they might be and under any pretext whatsoever, any part of the Witness’ statement;

ORDERS that the hearing transcripts of the Witness’ testimony not be subject to any disclosure.


Done in French and English, the French version being authoritative.

Done this twelfth day of May 1999
At The Hague
The Netherlands

Claude Jorda
Presiding Judge Trial Chamber I

(Seal of the Tribunal)