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1. Stevan Todorovic (“Todorovic”) is alleged in the indictment against him to have been the Chief of Police for the Bosanski Šamac Municipality in Bosnia and Herzegovina, and a member of the Serbian Municipality of Bosanski Šamac Crisis Staff which is alleged to have assumed and maintained control of the civilian government of both that municipality and the Municipality of Odžac. Relevant to some of the charges against Todorovic is the nature of the treatment afforded to non-Serbian civilians under detention in those municipalities.

2. Todorovic has filed a motion seeking an order requesting the assistance of the International Committee of the Red Cross ("ICRC") by –

(a) supplying reports made to it by individuals associated with or employed by it as to the conditions in which certain persons were detained in those municipalities, and

(b) identifying the individuals who inspected those detention facilities and interviewed the detainees.¹

3. Before that Motion was filed, however, a majority of the Trial Chamber had already issued a decision in the present case in which it was held that the ICRC has a right to non-disclosure in judicial proceedings of information in the possession of its employees relating to its activities, a right which does not call for any qualifications.² I gave a Separate Opinion, stating that I was not persuaded that the ICRC’s protection against disclosure was the absolute one which it asserted,³ but that it was unnecessary to come to any final conclusion upon that issue because, even assuming that the protection was not an absolute one, a balancing exercise between the powerful but competing public interests involved would necessarily result in the proposed evidence being excluded.⁴

4. I identified the first of those competing public interests as that arising from the obligation of confidentiality which the ICRC has to warring parties in relation to information obtained by it in exercising its rights of access to all places where prisoners of war are held and where civilians protected by the Fourth Geneva Convention are detained or work. This public interest recognises the need to protect the ICRC against any public disclosure of the fact that a current or former official or employee of that organisation is to give or has given evidence in any proceedings as to facts which came to the knowledge of the witness in his or her official capacity.⁵

5. The countervailing public interest identified was that all relevant evidence must be available to the courts who are to try persons charged with serious violations of humanitarian law, so that a just result might be obtained in such trials in accordance with law – a result which is just not only to the persons charged but also to the international community on whose behalf the prosecution acts, including the victims of the offences charged.⁶

6. In every case, I said, the court would have to weigh the competing interests – the importance of the evidence in the particular trial and the risk that the fact that the evidence has been given by an official or employee of the ICRC would be disclosed – to determine on which side the balance lies in that case. I emphasised that it would necessarily be rare that the evidence would be of such importance as to outweigh the ICRC’s need for protection against disclosure.⁷ The correct test, I said, is whether the evidence to be given by the witness in breach of the obligations of confidentiality owed by the ICRC is so essential to the case of the relevant party as to outweigh the risk of serious consequences of the breach of confidence in the particular case.⁸ Those consequences were identified as the serious risk that the ICRC will in the future be denied full access to prisoners of war and civilians protected by the Fourth Geneva Convention if its impartiality, neutrality and its obligation of confidentiality were to be impaired once it became known that evidence had been given by its current or former officials and employees of what was seen or heard by them during such access.⁹

7. Todorovic was not a party to the application which led to that decision. In support of his application for an order granting assistance to him by the ICRC, Todorovic has argued – as he is entitled to – that the ICRC Decision was wrong.¹⁰ So that he would be put in the same position as the prosecution in putting that argument, the Trial Chamber granted counsel for Todorovic access on a confidential basis to the material which the ICRC had put before the Trial Chamber when it had argued against the prosecution motion which resulted in the ICRC Decision.¹¹ The Trial Chamber subsequently explained that it was not only equality of arms but also common fairness which demanded that Todorovic should have such access for the purpose of arguing that the ICRC Decision was wrong, and that it could not reasonably be argued to the contrary.¹² This decision was taken in full realisation that the ICRC was opposed to the disclosure to Todorovic, because the Trial Chamber believed that the dictates of justice required the disclosure to be made.¹³

8. Todorovic has submitted that it is illogical for the ICRC to have “full immunity" whereas sovereign and independent States are "subject to binding orders" of the Tribunal, and that it "smacks of arrogant the ‘end justifies the means’ mode" [sic].¹⁴ He argues that reports made to the ICRC by its personnel, which he says are totally objective, were made in the regular course of the ICRC’s business of monitoring violations of human rights, and are thus evidence of the facts they state.¹⁵ The reports made by those personnel which he seeks had been forwarded by the ICRC to the host country, the Republika Srpska,¹⁶ and the ICRC had therefore waived its privilege^.17 Relief has not been sought upon the different basis analysed in my Separate Opinion.

9. Todorovic has apparently already requested the ICRC directly, but unsuccessfully, for the assistance which he seeks in furnishing documents and witnesses, for he asserts that the ICRC has taken the position that its reports are "confidential and privileged and not available".¹⁸ The reference to an order "requesting" assistance acknowledges the apparent inability of the Trial Chamber to make any order against the ICRC.¹⁹ What is sought is that the Trial Chamber now repeat the request on behalf of Todorovic. Such a request by the Trial Chamber would necessarily be interpreted as an attempt by it to place moral pressure upon the ICRC. In my view, the Trial Chamber should not make any such request unless it would have made such an order if it had had the power to do so against that organisation.

10. Would then an order have been made in favour of Todorovic if the Trial Chamber had had the power to do so? Assuming for the moment that the ICRC does have the right of non-disclosure accepted by the majority in the ICRC Decision, I agree with the majority in the present Decision that, as the fundamental task of the ICRC is to protect and assist the victims of armed conflicts as provided for in the Geneva Conventions and Additional Protocols,²⁰ it did not waive that right by forwarding its reports to the host country. But that conclusion does not, in my view, provide the answer to the application, as I remain unconvinced by the ICRC Decision that the ICRC’s protection against disclosure is the unqualified one which the majority accepted.²¹ With all due respect to the majority, I have now concluded that, before taking any step which will intrude upon the ICRC’s obligation of confidentiality, it is necessary in every case to weigh the competing public interests to which reference has already been made.

11. What then is the importance to his trial of the evidence which Todorovic seeks to obtain from the ICRC? He is unable to identify it. He says only that, as the ICRC had personnel on site at Bosanski Šamac at the relevant time, it had the opportunity to meet and interview the detainees and to observe the conditions of their detention.²² He asserts, "[u]pon information and belief", that these personnel made and filed reports as to the conditions of detention.²³ We already know that representatives of the ICRC did see the conditions of detention at the relevant time and place, as that was partly the nature of the evidence which the prosecution sought to lead from a field interpreter with the ICRC, and which was the subject of the ICRC Decision.²⁴ That evidence clearly would not have been of assistance to Todorovic. In effect, what Todorovic seeks is a form of discovery from the ICRC, to discover whether it has any information which would help him.

12. Whatever may be the practice otherwise within the United States, the practice of this Tribunal, in common with that of many other jurisdictions, does not permit a party to conduct a fishing expedition of that nature; before obtaining access to material in the possession of another, a party must demonstrate that such access is likely to materially assist his case, or that there is at least a good chance that it will give that assistance.²⁵ I am not satisfied that it has been so demonstrated in this case,²⁶ and I would have refused the application in the present case upon that basis alone.

13. But, even if the application is considered upon the basis that the proposed fishing expedition may establish the existence of at least one report which is favourable to Todorovic, there is absolutely nothing produced by Todorovic from which the Trial Chamber could conclude that this evidence is so essential to Todorovic’s case as to outweigh the risk of serious consequences of the breach of confidence by the ICRC in disclosing it to him. It is on that basis that I agree with the majority in the present Decision that the Motion should be denied.

14. For the foregoing reasons, I agree that the Motion be dismissed.

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

Dated this 7^th day of June 2000,
At The Hague,
The Netherlands.

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Judge David Hunt