Before: Judge Richard May, Presiding

Judge Patrick Robinson

Judge O-Gon Kwon

Registrar: Mr. Hans Holthuis

Decision of: 30 October 2003













The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome

The Accused
Slobodan Milošević

Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapušković
Mr. Timothy L.H. McCormack

THIS 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 ("the International Tribunal"),

BEING SEISED of a confidential and partly ex parte "Prosecution Application for a Witness Pursuant to Rule 70 (B)", filed on 10 October 2003 ("Application"), seeking the following:

  1. leave to call General Wesley Clark ("the witness"), adding him to the witness list on the basis that "good cause" has been shown;
  2. that, in accordance with the Appeals Chamber’s Rule 70 Decision, the witness and his entire testimony be treated as information protected by
    Rule 70 (C) and (D);
  3. that paragraphs 61, 62, 63, 65, 66, 67 and 85 of the summary attached to the Motion as ex parte Annex A be led in closed session, on the basis that, in the opinion of the information provider, the Government of the United States of America ("US Government"), it constitutes sensitive information going to that Government’s legitimate national interests;
  4. that the witness or the US Government representatives can require the testimony to be moved into closed session when necessary to protect sensitive information;
  5. to give effect to the protective measures sought, the broadcast of the testimony be delayed 48 hours (instead of the customary 30 minutes), to enable the US Government to review the transcript, and the testimony to be entirely in temporary closed session, the public gallery being closed so as to protect any information initially given in open session but subsequently required to be given closed session protection;
  6. the Prosecution’s testimony should be limited in scope to the content of the summary attached to the Motion as ex parte Annex A;
  7. the scope of cross-examination should be restricted to the scope of examination-in-chief, except to the extent the Accused or Amici Curiae seek to have the scope of examination expanded by prior agreement of the US Government; and
  8. the US Government should be entitled to have 2 representatives present in court during the testimony of the witness,

NOTING the "Amici Curiae Reply to Prosecution Application for a Witness Pursuant to Rule 70 (B) Dated 10 October 2003" filed on 16 October 2003 ("Response"), in which the following is submitted:

  1. the Prosecution has not shown "good cause" to add the witness;
  2. whilst not having seen the summary of the witness (which was annexed by the Prosecution to its Motion on an ex parte basis), it is suggested that closed session testimony should be used to protect only that which is truly confidential and the impact of the Accused’s questioning would be unfairly restricted by it being in closed session; and
  3. the procedures proposed by the Prosecution to protect the confidential information may constitute undue interference with the proceedings and the interests of the US Government could be adequately dealt with in the courtroom as they arise if the Government made available at the time of the testimony the necessary personnel able to take decisions on this;

CONSIDERING the Trial Chamber’s ruling subsequent to the filing of the Prosecution’s pre-trial material for the Croatia and Bosnia part of these proceedings that it would only allow the admission of additional material by the Prosecution on good cause being shown 1,

CONSIDERING the Trial Chamber accepts that the explanation offered in the Motion satisfies the Trial Chamber that its requirement that good cause be shown is satisfied, in that the basis upon which the witness is allowed to give evidence by the information provider was only agreed on the date of the Application and that the witness can give important evidence,

CONSIDERING the Appeals Chamber has held that

    1. where it can be established that information is provided to the Prosecution on a confidential basis under Rule 70, then it is protected by paragraphs (C) and (D) of that Rule 2;
    2. when a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the "information" shielded by Rule 70, but also the substance of the information shared by the person (which is often, as in this case, presented in summary form in a witness statement) 3;
    3. the Trial Chamber has the authority to assess whether information has been provided in accordance with Rule 70 (B), although "such enquiry must be of a very limited nature" 4.
    4. the Trial Chamber retains the safeguard of a discretion to "exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial" pursuant to Rule 70 (G) 5; and
    5. the Trial Chamber has discretion to allow the presence of representatives of an information provider in court whilst the evidence is given 6,

CONSIDERING that the Trial Chamber accepts, on the basis of the Prosecution submissions, that the witness and the testimony he will give, was provided on a "confidential basis" pursuant to Rule 70,

CONSIDERING that it is appropriate, consistent with the Trial Chamber’s prior practice, for two representatives of the US Government to be present in court when the testimony of the witness is given,

NOTING the provisions of Rules 75 and 79 of the Rules,

CONSIDERING that the US Government has imposed conditions on the provision of the "information" as set out in the Prosecution Application and repeated above,

NOTING Rule 70 (G) which states that nothing in Rule 70 (C) or (D) shall affect a Trial Chamber’s power under Rule 89 (D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial,

PURSUANT TO Rules 70, 75, 79 and 54 of the Rules of Procedure and Evidence


  1. General Wesley Clark ("the witness") may be added to the Prosecution witness list;
  2. the witness’s testimony shall be treated as information provided pursuant to and protected by Rule 70 (C) and (D);
  3. two representatives of the US Government may be present in court during the testimony of the witness;
  4. the evidence of the witness shall be given in open session subject to the protective measures set out below;
  5. the evidence contained in paragraphs 61, 62, 63, 65, 66, 67 and 85 of the summary attached to the Motion as ex parte Annex A may be given in private session in order to protect the national interests of the US and request may be made for additional evidence to be so given on the same ground;
  6. the public gallery be closed during the course of the witness’s testimony;
  7. the broadcast of the testimony be delayed for a period of 48 hours to enable the US Government to review the transcript and make representations as to whether evidence given in open session should be redacted in order to protect the national interests of the US, and shall be delayed for a period thereafter to enable the Trial Chamber to consider and determine any redactions requested, and, if ordered, for the redactions to be made to the tape of the testimony prior to its release;
  8. the scope of examination-in-chief and cross-examination of the witness be limited to the content of the summary attached to the Motion as ex parte Annex A;
  9. The Accused or Amici Curiae may seek to have the scope of examination expanded by prior agreement of the US Government (obtained directly from that Government or through the representation of the Office of the Prosecutor), once the summary of the evidence-in-chief to be given is disclosed to them; and
  10. The Prosecution shall disclose the summary contained in ex parte Annex A forthwith.


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


Richard May Presiding


Dated this thirtieth day of October 2003

At The Hague

The Netherlands

[Seal of the Tribunal]


1 . “Decision on Prosecution Request for Agreement of Trial Chamber to Amend Schedule of Filings”, 18 April 2002, p.3.
2 . Prosecutor v. Miloševic, “Decision on the Interpretation and Application of Rule 70”, IT-02-54-AR108bis & AR73.3, 23 October 2002 (“Milosevic Appeals Decision”), para. 20.
3 . Ibid, para. 23.
4 . Ibid, para. 29. The Appeals Chamber states that this is an objective test, and continues: “The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.” Trial Chambers must give the information provider an opportunity to be heard, allowance to file written submissions satisfying this requirement (para. 31).
5 . Ibid, para. 26.
6 . Ibid, para. 33.