Case No.: IT-02-54-T


Judge Patrick Robinson, Presiding
Judge Richard May
Judge O-Gon Kwon

Mr. Hans Holthuis

Decision of:
27 May 2004







The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegard Uertz-Retzlaff

The Accused

Mr. Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Prof. 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"),

NOTING the Accused’s "Confidential List of Witnesses" filed on 13 April 2004, in which the Accused sets out, pursuant to Rule 65 ter of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), information concerning 1631 witnesses he proposes to call to testify in his defence, including "the name or pseudonym of each witness",1

NOTING that only a small number of these witnesses are named, the majority being referred to solely by a pseudonym, and that a note at the commencement of the witness list states that "most of the witnesses have not made a final decision on the use or type of protective measures" they would apply for,

NOTING that, whilst the Rules and the jurisprudence of the International Tribunal provide for the Prosecution’s obligation to disclose a witness’s identity and other information in advance of the commencement of the trial2 and, in exceptional circumstances, closer to the time at which the witness will testify,3 apart from a decision of the Trial Chamber in the Delalic case,4 there is little regulating the conduct of Defence in such matters,


  1. the fundamental duty of the Trial Chamber is to ensure that the trial is "fair and expeditious";5

  2. it is in the interests of justice and the proper conduct of the trial that the Trial Chamber order the Accused to reveal the identity of the witnesses he intends to call within a reasonable time so as to enable the Prosecution and, if appropriate, Amici Curiae, to prepare for cross-examination of the witnesses; and

  3. the disclosure regime, as set out below, does not in any way prejudice the rights of the Accused,

NOTING that the witnesses the Accused intends to call are entitled to apply for protective measures and that the Trial Chamber will consider any such application in accordance with the jurisprudence, already set out by the Trial Chamber in this case:

[F]or…protective measures…to be granted the applicant must show that, should it become publicly known that he testified, there is a real risk to his security or that of his family. Furthermore, something more than a general expression of fear by the witness for his safety must be shown. Some specific reason must be established and the Trial Chamber must be satisfied that the fear expressed has an objective foundation.6

CONSIDERING HOWEVER that the application for such measures should not interfere with the immediate disclosure to the Trial Chamber, Prosecution and Amici Curiae, but not the public, of the names of the witnesses the Accused intends to call, subject to an application for delayed disclosure to the Prosecution and Amici Curiae of the identity of those witnesses for whom exceptional circumstances can be shown,7

CONSIDERING that, at any rate, no reason exists for not disclosing immediately to the Trial Chamber the identities of all witnesses on the Accused’s witness list,

PURSUANT TO Articles 20 and 21 of the Statute and Rules 54 and 75 of the Rules


  1. The Accused shall, within 14 days, produce to the Trial Chamber the identities of all witnesses on the Rule 65 ter (G) witness list;
  2. The Accused shall, within 14 days, disclose to the Prosecution and Amici Curiae, the identities of all witnesses on the Rule 65 ter (G) witness list, except those identified by the Accused as witnesses for whom the extraordinary protective measure of delayed disclosure will be sought;
  3. Applications for delayed disclosure for witnesses shall be made within seven days of the commencement of the Defence case; and
  4. Applications for trial related protective measures under Rules 75 or 79 of the Rules shall be made at least 14 days prior to the testimony of the witness.

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

Judge Robinson

Dated this twenty-seventh day of May 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Rule 65 ter (G) (1)(a). (Emphasis added)
2. See Rule 66 and, for a discussion of the manner in which the Prosecution must deal with requests for non-disclosure of information and protective measures, see, for example, Prosecutor v. Milosevic, “Decision on Trial Related Protective Measures for Witnesses”, 30 July 2002.
3. See, for example, Prosecutor v. Milosevic, “First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses”, 3 May 2002.
4. Prosecutor v. Delalic et al., “Decision on the Prosecution’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence”, 4 February 1998.
5. Article 20.1 of the Statute.
6. Supra note 2, para. 11.
7. In the Trial Chamber’s Decision concerning sensitive source witnesses, referenced supra note 3, the Chamber held that the exceptional circumstances warranting the extraordinary measures of delayed disclosure are the extreme nature of the danger and risk they and/or their families face should it become known that they will testify in these proceedings.