Case No. : IT-99-36-A
IN THE APPEALS CHAMBER
Judge Theodor Meron, President
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Amin El Mahdi
Judge Andresia Vaz
Mr. Hans Holthuis
12 September 2005
ORDER TO VARY PROTECTIVE MEASURES
The Office of the Prosecutor:
Ms. Carla Del Ponte
1. The Appeals 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 ("International Tribunal") is seized of the Prosecutor’s Application for Variation of Protective Measures ("Application"), filed publicly on 23 August 2005 on an ex parte basis, with confidential annexes.
2. The Application seeks to make certain confidential information—the names, contact information, and evidence of several protected witnesses—available to the Government of Bosnia and Herzegovina (BiH). BiH has requested the Prosecutor’s help in obtaining this information. It explains that it has in its custody a person suspected of committing crimes related to those of which the Appellant in this case, Radoslav Brđanin, has been convicted. In order to make a case against this suspect and issue an indictment by 17 September 2005, the date on which the current order for his detention expires, BiH states that it needs to speak to and attempt to secure the cooperation of certain protected witnesses in the Brđanin case.
3. This is not the first such request made by BiH. In its Order to Vary Protective Measures issued on 13 May 2005 ("13 May Order"), the Appeals Chamber granted an Application of the Prosecution, made pursuant to another BiH request for access to information about certain other protected witnesses in this case. The Appeals Chamber cited Security Council resolutions 1503/2003 and 1534/2004, which emphasize, "as a critical portion of the International Tribunal’s Completion Strategy, the need to facilitate efforts to bring war crimes prosecutions in the national judicial systems within the Former Yugoslavia." It also relied on its "inherent authority, as the Chamber currently seized of proceedings in this case, to modify orders entered earlier in these proceedings, including those issued pursuant to Rule 75(A) of the Rules of Procedure and Evidence (Rules)".
3. The 13 May Order was issued only after the Victims and Witnesses Section of the International Tribunal ("VWS") contacted the protected witnesses in question and ensured their consent to the release of the information. Moreover, the Order made release of the information contingent on the BiH authorities submitting written assurances that they would maintain the confidentiality of the materials and would adopt measures necessary to protect the witnesses. And, rather than merely relying on this BiH assurance, the Appeals Chamber ordered the BiH authorities to comply with these confidentiality measures upon receipt of the information, citing the obligations of member states of the United Nations, under Article 29 of the Statute of the International Tribunal, to comply with orders issued by this Tribunal.
4. The Appeals Chamber considers that the same principles apply to the current request, which simply concerns different protected witnesses and a different suspect in custody. Here, however, the Prosecution has facilitated the faster disposition of the matter in two respects. First, it has already obtained written assurances from the Chief Prosecutor and Minister of Justice of BiH to respect the protective measures ordered in this case, including any orders issued by the Appeals Chamber, to maintain the confidentiality of witnesses, and to ensure their safety and security. Second, it has already obtained the consent of two out of the three relevant protected witnesses in the Brđanin case. As to the third, who unlike the others is no longer acting as a witness in any pending trial, the Prosecution requests that VWS be asked to contacted the witness.
5. The Appeals Chamber considers that in light of these developments, and for the reasons further explained in the 13 May Order, it is now appropriate to transfer the relevant information and evidence to the BiH government with respect to those witnesses who have already given their consent.
The Appeals Chamber hereby GRANTS the Prosecutor’s Application and VARIES the protective measures concerning the protected witnesses in the Brđanin case identified in Confidential Annex B to the Application, as follows:
Done in French and English, the English version being authoritative.
Judge Theodor Meron
Dated 12 September 2005
At The Hague
[Seal of the International Tribunal]