Judicial Supplement 16 - The Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric

"Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross"

On 27 July 1999, Trial Chamber III issued the Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness (hereinafter, "the ICRC Decision")1, in which the Trial Chamber stated that the issue to be considered was not whether the Tribunal had jurisdiction over the International Committee of the Red Cross (ICRC) and, in particular, whether the Tribunal had the power to compel the ICRC to produce the information. Trial Chamber III held that the issue to be considered was whether the ICRC had a relevant and genuine confidentiality interest such that the testimony of a former employee who obtained the information while performing official duties should not be admitted (para. 38)2.

On 22 September 1999, Counsel for Stevan Todorovic filed a Motion for an Order Requesting Assistance in Securing Documents and Witnesses from the ICRC, in which the Defence sought an order for judicial assistance in obtaining certain information from the ICRC.

On 4 October 1999, the Office of the Prosecutor filed a response, in which it stated that "[p]rovided the accused can bring this request in a manner consistent with the jurisprudence of the Tribunal, the Prosecution takes no position on the matter".

By an Order dated 18 November 1999, the Trial Chamber granted leave to the ICRC to appear in this matter as amicus curiæ, and stated that a further filing would be sought in respect of the Todorovic Motion for an Order to ICRC after disclosure to the Defence of various material relating to the ICRC Decision.

On 28 February 2000, Trial Chamber III issued its Decision on (1) application by Stevan Todorovic to re-open the Decision of 27 July 1999, (2) Motion by the ICRC to re-open Scheduling Order of 18 November 1999, and (3) conditions for Access to Material3, in which it noted that "it remains open to Todorovic to proceed with [the Todorovic Motion for Order to ICRC] and to seek to persuade the Trial Chamber that [the ICRC Decision] is wrong or can be distinguished in relation to the circumstances of [the Todorovic Motion for Order to ICRC]" (para. 11). The Trial Chamber further held "that not only equality of arms but also common fairness demanded that [Todorovic] should have access for the purpose of arguing that the ICRC Decision was wrong". Trial Chamber added "that it could not reasonably be argued to the contrary" (para. 22).

On 3 May 2000, the Defence filed the Further Submission on the Motion for Order to ICRC, after disclosure of the said material, in which it raised the argument that it "rejects the position that the ICRC has full immunity from national courts or other tribunals" and that it is "illogical to hold a position that while states, even warring states, may be compelled to furnish evidence to this Tribunal, the ICRC may not be so compelled". Counsel for Todorovic argued that it was illogical for the ICRC to enjoy immunity" whereas sovereign and independent States were "subject to binding orders" of the Tribunal.

Pursuant to Rule 54 of the Rules of Procedure and Evidence, Trial Chamber III denied the Motion4.

The Trial Chamber held that the ICRC Decision reflected its majority finding that in judicial proceedings the ICRC had a right under the four Geneva Conventions and the two Additional Protocols to insist on non-disclosure of information relating to the work of the ICRC in the possession of an ICRC employee. Trial Chamber III further ruled that under customary international law the ICRC had a right to non-disclosure of certain information as defined in the ICRC Decision.

In its Decision dated 28 February 2000, the Trial Chamber also considered the application of the res judicata principle5 in relation to the ICRC Decision and its effect on parties to this case, not parties to the proceedings which led to that Decision.

Trial Chamber III ruled that the Defence had failed to establish to the satisfaction of the Trial Chamber either that its findings in the ICRC Decision were wrong or that the material the Defence sought was so different from the materials at issue in the ICRC Decision that a distinction should be made.

Trial Chamber III also held that it was not satisfied that the ICRC had waived its right to non-disclosure by providing copies of its reports to the host State, a part of the ICRC’s fundamental task to protect and assist the victims of armed conflicts as provided for in the Geneva Conventions and additional Protocols.

In a Separate Opinion, Judge David Hunt re-iterated the approach which he had adopted in the earlier ICRC Decision. He weighed the public interest 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, against the countervailing public interest 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. The judge said that he had now concluded that such an exercise was necessary in every case7.

It was held that Todorovic was merely conducting a fishing expedition, and that the application would have been refused upon that basis alone. In any event, nothing had been shown that the evidence was so essential to Todorovic’s case as to outweigh the risk of serious consequences of the breach of confidence by the ICRC in disclosing that information to Todorovic.

Res judicata means a matter that has been decided. This notion can be defined as the principle that when an issue has been definitely settled in a judicial decision by a court of competent jurisdiction, the original parties or their successors may not reopen or challenge it in a second subsequent lawsuit on the same claim. Nor may they make the claim, which they could have made in the first suit, but did not, on the basis of the same transaction or series of transactions. This does not preclude an appeal or a challenge to the jurisdiction of the court. Its justification is the need for finality in litigation.

On res judicata, see The Prosecutor v. Delalic et al., Case No. IT-96-21-T, Trial Chamber II, Order Disposing of Motions filed by the Defence, 27 January 1997, in which the Trial Chamber dismissed the Motion for Reconsideration of Application for Separate Trial filed by Esad Landzo on 14 January 1997, in part because the matter had already been adjudicated: "Noting the Decision on Motions for Separate Trial issued by this Trial Chamber on 26 September 1996 and considering that the Defence has failed to establish, to the satisfaction of the Trial Chamber, good cause justifying the grant of relief under Sub-rule 73(C) of the Rules, the Motion for Reconsideration of Application for Separate Trial filed on 14 January 1997 on behalf of the accused, Esad Landzo, is denied" (para. 1).

Having found that "good cause" within the meaning of Sub-rule 73(c) (now Sub-rule 72(B)(ii)) had not been shown by the accused, in the same Order the Chamber refused the accused's Motion for Enlargement of Time in which to file Pretrial Motions, filed on 14 January 1997, because the accused had failed to establish that the said Motion fell within Rule 73 (para. 2 of the Order).

See also the Judgement of 16 November 1998: "There can be no question that the issue of the nature of the armed conflict relevant to the present case is not res judicata. The principle of res judicata only applies inter partes in a case where a matter has already been judicially determined within that case itself. As in national criminal systems which employ a public prosecutor in some form, the Prosecution is clearly always a party to cases before the International Tribunal. The doctrine of res judicata is limited, in criminal cases, to the question of whether, when the previous trial of a particular individual is followed by another of the same individual, a specific matter has already been fully litigated. In national systems where a public prosecutor appears in all criminal cases, the doctrine is clearly not applied so as to prevent the prosecutor from disputing a matter which the prosecutor has argued in a previous, different case. Moreover, this Trial Chamber is certainly not bound by the Decisions of other Trial Chambers in past cases and must make its findings based on the evidence presented to it and its own interpretation of the law applicable to the case at issue. The circumstances of each case differ significantly and thus also the evidence presented by the Prosecution. Even should the Prosecution bring evidence which is largely similar to that presented in a previous case, the Trial Chamber's assessment of it may lead to entirely different results.

It is, further, incorrect to contend that the Appeals Chamber has already settled the matter of the nature of the conflict in Bosnia and Herzegovina. In the Tadic Jurisdiction Decision the Chamber found that 'the conflicts in the former Yugoslavia have both internal and international aspects' and deliberately left the question of the nature of particular conflicts open for the Trial Chambers to determine" (paras. 228 and 229).

See also The Prosecutor v. Simic, Tadic, Todorovic and Zaric, Case No. IT-95-9-PT, Trial Chamber III, Decision on (1) application by Stevan Todorovic to re-open the Decision of 27 July 1999, (2) Motion by the ICRC to re-open Scheduling Order of 18 November 1999, and (3) conditions for Access to Material, 28 February 2000, in which 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 he wished re-opened is not res judicata so far as anyone other than the parties to that motion is concerned (para. 9).

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1. See the summary of this Decision in Judicial Supplement No. 7.
2. 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).
3. See the summary of this Decision in Judicial Supplement No. 12.
4. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial".
5. On res Judicata, see the text box of this issue of the Judicial Supplement.
6. Separate Opinion of Judge David Hunt on Motion by Todorovic for Order Requesting Assistance of the International Committee of the Red Cross, 7 June 2000.
7. Para 10.

"Judgement in the Matter of Contempt Allegations against an Accused and his Counsel"

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1.The Prosecutor v. Dusko Tadic, Case No. IT-94-01-T, Appeals Chamber, Judgement on allegations of contempt against prior Counsel, Milan Vujin, 31 January 2000 (see the summary of this Decision in Judicial Supplement No. 11).
2.Ibidem, paras 17-19. In respect of contempt as a prerogative of the Chambers, see The Prosecutor v. Delalic at al., Case No. IT-95-21-A, Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which President Antonio Cassese stated, obiter dictum, that contempt of Tribunal was the prerogative of the Chambers since it derived from the inherent power of the Court to control its own proceedings.
3. "Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice".
4. Tadic Contempt Judgement. The Appeals Chamber stated that each of the formulations in current Sub-rules 77(A) to (D), when interpreted in the light of the statement of the Tribunal’s inherent power, falls within - but does not limit - that inherent power, as each clearly amounts to interfering knowingly and wilfully with the Tribunal’s administration of justice (para. 26).