"Decision on (1) Application by Stevan Todorovic to re-open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material"

28 February 2000
Trial Chamber III (Judges Robinson [Presiding], Hunt and Bennouna)

Background

The Trial Chamber had previously rendered a majority decision in these proceedings in which it held that in judicial proceedings the International Committee of the Red Cross (hereinafter, "the ICRC") has a right to non-disclosure of information in the possession of its employees relating to its activities, a right which does not call for any qualifications1. The decision related to a witness who was a former ICRC employee, whom the Prosecution had intended to call, and who was prepared to give evidence voluntarily upon matters relevant to the Prosecution case. The decision was initially given ex parte and confidentially. That confidentiality was subsequently lifted by the Trial Chamber following the agreement of the parties reached after the decision had been given2.

In the same proceedings, one of the accused, Stevan Todorovic, who had in the meantime sought assistance from the ICRC, then applied to re-open the ICRC Decision and to request that it be set aside3. Both the Prosecution and the ICRC opposed the application.

The decision

The Trial Chamber held that an application to re-open a decision of the Tribunal, made by an accused that was not a party to the motion which led to that decision, was misconceived. The law stated in the decision sought to be re-opened is not res judicata so far as anyone other than the parties to that motion is concerned. That statement of law has the status of a precedent and, as such, it has the same effect in relation to other motions filed in these proceedings as other statements of law made by the Trial Chamber (or any other Trial Chamber) in different proceedings4. The accused who was not a party to the motion could have proceeded with his own motion and sought to persuade the Trial Chamber that that statement of law is either wrong or can be distinguished in relation to the circumstances of his motion. He could also have sought leave to appeal if he failed to do so. The motion was thus dismissed5.

The accused also sought a definition of the scope of and guidelines for the use of ex parte motions. The Trial Chamber ruled that ex parte applications are appropriately made in many different circumstances. They are warranted where the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application6. The fundamental principle in every case is that ex parte proceedings should be entertained only where it is thought necessary in the interests of justice to do so - that is, justice to everyone concerned7.

Beyond that, the Trial Chamber stated that it is neither possible nor opportune to define the circumstances in which such motions are appropriate by any limiting definition. The Trial Chamber did point out that a Trial Chamber must necessarily rely to a very large extent upon the assurances of counsel before entertaining an ex parte application. Experience suggests that counsel are sometimes overly enthusiastic in their assurances that it is appropriate for a particular application to be heard ex parte. There is a need for counsel seeking to have an application heard ex parte and confidentially to exercise greater care when giving their assurance and for Trial Chambers to do so when accepting such assurance.

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1. The Prosecutor v. Simic et al., Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999 ("ICRC Decision"), at paras. 73-74, 76. The decision makes it clear that such a ruling relates only to information obtained by employees in the course of their official functions (para. 36).
2. See Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999 (summarised in Judicial Supplement No. 7).
3. This is Todorovic’s so-called "Second Motion": Accused Stevan Todorovic’s Motion for an Order Seeking to Re-Open the Confidential Ex Parte Motion Under Rule 73 Concerning the Testimony of a Witness Formerly Associated with the International Committee of the Red Cross, and Upon Such Re-Opening, Opportunity to be Heard and Associated Relief, 5 October 1999.
4. Para. 9.
5. Likewise his argument that he was denied due process when he was not given an opportunity to be heard is similarly misconceived as he was not a party to the motion which led to the ICRC Decision.
6. Para. 39. Examples of ex parte proceedings provided for in the Rules are given in paragraph 40 of the Decision. But those provisions of the Rules do not exhaust the circumstances in which it may be appropriate to communicate with a Trial Chamber ex parte or for the Trial Chamber to deal with a matter ex parte.
7. Para. 41.