The Prosecutor v. Tihomir Blaskic - Case No. IT-95-14-T
"Decision of Trial Chamber I on the Protective Measures for General Philippe Morillon, Witness of the Trial Chamber"
Trial Chamber I (Judges Jorda [Presiding], Shahabuddeen and Rodrigues)
Articles 22 and 29, Rules 54, 70, 75, 79 and 89 - protection of information given in testimony before the Tribunal.
The Trial Chambers power to ensure witness protection, pursuant to Article 22 and Rules 54, 75 and 79, extends to the protection of information in the possession of a witness where disclosure thereof, or disclosure of its source, might have serious repercussions for the safety of the witness or a third party. This is without prejudice to Sub-rule 89(D), according to which evidence may be excluded if its probative value is substantially outweighed by the need to ensure a fair trial.
On 25 March 1999, Trial Chamber I ordered General Philippe Morillon, UNPROFOR Commander in Bosnia and Herzegovina at the times of the events mentioned in the indictment, to appear before it as a witness. General Morillon is to testify on matters he learned during his mission which are related to the acts allegedly committed by the accused.
In an Application dated 15 April 1999 (hereinafter "the Application"), the witness requested that the Trial Chamber grant him six protective measures after arguing that not only might his testimony put his own safety and that of other French civilian and military personnel in the former Yugoslavia at risk but also that certain information disclosed might run contrary to the "essential security interests" of France. The Application was based on French legislation and Tribunal jurisprudence, in particular, the Appeals Chambers Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 of 29 October 1997 in the Blaskic case.
In correspondence dated 10 May 1999 (hereinafter "the Correspondence"), the Legal Counsel of the United Nations informed the Trial Chamber that the Secretary-General had lifted the witness immunity from jurisdiction to testify, subject to protective measures identical, or very similar, to those requested in the Application.
In view of the information set out in the Application and the Correspondence, the Trial Chamber deemed that the witness testimony might endanger the safety of military and civilian personnel and make it difficult for the UN and France to carry out military and humanitarian action in the former Yugoslavia.
The Trial Chamber, however, considered that, pursuant to Article 29 of the Statute, States are bound to co-operate with the Tribunal and that only the Judges may set down limits thereto. In this respect, according to the Appeals Chambers Judgement, a Judge may exceptionally allow limited disclosure of documents ordered if a State acts in good faith and satisfies the Judge that its national security is at risk and that the documents have no real importance for the case. The Trial Chamber made it clear however that, in the present case, except for those the witness might consider appropriate, it has not ordered the production of documents. Moreover, the UN Secretary-Generals authorisation to testify does not automatically include authorisation to disclose documents.
The Trial Chamber also held that neither the witness nor any authority to which he answered at the relevant time could invoke Rule 70 of the Rules of Procedure and Evidence. That provision, which deals inter alia with the protection of information confidentially provided to the Prosecutor and used solely in order to generate new evidence, is not applicable because its requirements have not been met in this case. The Trial Chamber decided, however, that the witness should not be asked about the sources of his information insofar as they directly affect the safety of UN peace-keeping forces or the State of which the witness is a national. It stated that those sources do not fall within the scope of the topics about which he is to testify.
However, on its own motion and pursuant to Article 22 and Rules 54, 75 and 79, the Trial Chamber granted the Application and ordered that the witness testify in closed session. It further stated a number of topics that should be covered. The Trial Chamber also outlined the procedure to be followed during the testimony, namely, that the witness must first make a spontaneous statement during which he may rely on notes but not on a prepared statement and that the questions by the parties should fall within the scope his initial statement.
The witness was authorised to indicate to the Trial Chamber if any of the requested information is confidential. The Trial Chamber also authorised representatives of the UN Secretary-General and the French Government to be present during the testimony and to present, if necessary ex parte, any reasoned request which in their view is necessary "for the protection of the higher interests they have been assigned to protect." Finally, the Trial Chamber ordered the parties not to disclose to any third parties any part of the witness statement and that the hearing transcripts of that statement shall not be subject to any disclosure.