"Public Version of the Confidential Decision on the Prosecution's Motion to Grant Specific Protection Pursuant to Rule 70"

25 July 2002
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 30 May 2002, the Prosecution applied for the Trial Chamber to grant an order that a representative of a supplying country be present in court during the evidence of a particular witness, that the Prosecution's questioning be limited to a detailed outline agreed on by the supplying government and that the scope of cross-examination be limited to the scope of direct cross-examination.

· On 10 June 2002, in private session, the Prosecution made clear its position that the authorisation for the giving of evidence by the concerned witness was conditioned on the obtaining from the Trial Chamber of an order prior to his giving of evidence that allows for government attorneys to attend the hearing inside the courtroom and to advise the witness as necessary. The Trial Chamber pointed out that the need for the lawyers to be present was in order to deal with issues of national security which might arise and with compliance with the Rule 70 agreement.

· In a confidential written submission of 3 July 2002, the Prosecution added that the witness and the information he may be able to provide were identified to the Prosecution confidentially by the Government in question for the purpose of generating new evidence subject to the Rules of Procedure and Evidence.

The Decision

The Trial Chamber granted the Prosecution's Motion in part, in that it decided that:

(a) the examination-in-chief [of the Witness] shall be tailored by the Prosecution to exclude any confidential information;
(b) in cross-examination the accused will not be permitted to ask questions and seek information beyond that provided in the subject matter of the evidence-in-chief;
(c) questions as to the credibility will be permitted provided that the answers are not liable to reveal confidential information;
(d) two representatives of the Government may be present in the courtroom during the testimony of the Witness.

The Reasoning

The continuity and object of Rule 70

According to the Trial Chamber Rule 70 of the Rules of Procedure and Evidence1 "clearly sets out a regime for the protection of those who provide confidential information or 'leads' which allows the Prosecutor to pursue lines of inquiry; and if the Prosecutor chooses to introduce this information into evidence (in whatever form is appropriate) further protection is provided".2

The Trial Chamber reaffirmed the findings of Trial Chamber II, in Brdjanin and Talic,3 that the phrase "has been used solely for the purpose of generating new evidence" qualifies the information under Rule 70(B), (C) and (D). It concluded that "the reference in Rule 70(C) to the information 'so provided' is a clear reference to the information referred to in Rule 70(B), as is the reference to 'the information' in Rule 70(D)".4 There is "a continuity throughout the Rule".5

At the hearing of 5 July 2002 the Prosecution argued that "the object of the Rule was to ensure that the provider of information can be confident that the terms upon which the witness had been provided would be respected",6 and that the Government had conditioned its relationship with the International Tribunal on the basis of the Blaskic Decision.7 At the same hearing the Amicus Curiae argued that "Rule 70 cannot be used as a policy instrument to allow a third party to control the admission of evidence in a trial".8

The Trial Chamber was "not satisfied (…) that the initial information in this case was provided to allow the Prosecutor to pursue lines of inquiry or solely for the purpose of generating new evidence".9 Rather than information, the Trial Chamber found that the Prosecution was providing for a witness that it could have found in any case, and who was corroborating evidence which the Prosecution already had. It therefore rejected the applicability of Rule 70(B). Nevertheless it decided to review the authorities in relation to Rule 70 and national security concerns.

The Trial Chamber considered that "States have legitimate national security concerns which international tribunals must address".10 According to the Trial Chamber the matter in question does not only cover "national security" but also "sensitive or confidential" information "in need of protection on other grounds, e.g. security of an individual; protection of sources of information; or to ensure effectiveness of ongoing operations or not to jeopardise them".11

In this respect the Trial Chamber referred to the Blaskic Decision of 13 November 1997 in which Trial Chamber I pointed out that the exceptions to disclosure in Rule 70 "permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or origin".12 In this decision Trial Chamber I granted the Prosecution's motion, applied Rule 70(D), limited the scope of cross-examination to the scope of direct examination (which had been approved by the Government) and allowed a government representative to be present and to address the Chamber. Trial Chamber I also allowed the witness to testify in closed session.

The Trial Chamber also referred to a decision of Trial Chamber III in the Kordic and Cerkez case regarding a Prosecution motion seeking a ruling as to whether a serving diplomat of a government might be called as a witness and whether the provisions of Rule 70 might be applied to the witness.13 In this decision Trial Chamber II was not persuaded that Rule 70 was applicable but was satisfied that the relief requested by the Prosecution was appropriate. It therefore permitted a representative of the government to be present in the courtroom and restricted cross-examination to matters arising from the evidence-in-chief (subject to the overriding discretion of the Trial Chamber). Trial Chamber III also allowed the witness to testify in closed session.

The Trial Chamber finally referred to the decision of Trial Chamber II in Brdjanin and Talic14 in that it ruled that the function of Rule 70 is akin to the concept of public interest immunity available in some systems of law, which has been used to protect the identity of informers for their own safety as well as to ensure that the authorities have a continuous supply of information from these sources and that "in addition such immunity is regularly extended when disclosing certain information to the defence might jeopardise the security of police or military operations".15

The review of the above decisions led the Trial Chamber to assert that "it appears that no settled practice has been established in the International Tribunal". It noted the trend -"reinforced by the regime under the Rome Statute of the International Criminal Court"16- on the part of the States to expect that "information could be provided confidentially by them to the Prosecutor which would then be treated confidentially and this would involve special arrangements being made to limit the evidence at trial".17

Specific measures of protection

Following this the Trial Chamber, while noting that the International Tribunal is not bound by the rules of the International Criminal Court (hereinafter "ICC) but can seek guidance from these rules, reviewed the subsequent relevant articles of the ICC Statute, namely articles 54(3)(e),18 72(4), (5), (7)19 and 93(4).20 Recalling that no such provisions exist in the Rules of the International Tribunal, it declared itself "satisfied that a State has the right to specific measures for the giving of evidence by a witness, for purposes of protecting information which the State considers to be prejudicial to its security interests", adding that this right is supported by "the practice of the International Tribunal […] as well as the Rome Statute".21 In order to adhere to this practice which the Trial Chamber "approves and will apply", it held that "this can be best done by limiting the evidence of the Witness to relevant and non-confidential matters and in this exceptional circumstance, by applying Rule 90(H) restrictively to limit the cross-examination".22 Following this approach the Trial Chamber declared that "in order to protect the security interests of the Government which has provided confidential information to the Prosecution, [it] will rule that:

(a) the examination-in-chief shall be tailored by the Prosecution to exclude any confidential information;
(b) in cross-examination the accused will not be permitted to ask questions and seek information beyond that provided in the subject matter of the evidence-in-chief;
(c) questions as to the credibility will be permitted provided that the answers are not liable to reveal confidential information."

Furthermore, it stated that "any potential injustice to the accused by restricting the cross-examination can be addressed by the exclusion under Rule 89(D) of any evidence".23

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1. Rule 70 (Matters not Subject to Disclosure)
(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules.
(B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.
(C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. A Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence.
(D) If the Prosecutor calls a witness to introduce in evidence any information provided under this Rule, the Trial Chamber may not compel that witness to answer any question relating to the information or its origin, if the witness declines to answer on grounds of confidentiality.
(E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to the limitations contained in Sub-rules (C) and (D).
(F) The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused.
(G) Nothing in Sub-rule (C) or (D) above shall affect a Trial Chamber's power under Rule 89 (D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
2. Para. 5.
3. See The Prosecutor v. Brdjanin and Talic ("Krajina"), Case No. IT-99-36-T, Trial Chamber II, "Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002"(hereinafter "Brdjanin & Talic Decision"), para. 19 and 21. Summarised in Judicial Supplement No. 33.
4. Para. 7.
5. Ibid.
6. Para. 8.
7. The Prosecutor v. Blaskic ("Lasva Valley"), Case No. IT-95-14-T, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures (hereinafter "Blaskic Decision"), 13 November 1997.
8. Para. 9.
9. Para. 10.
10. Para. 11, where the Trial Chamber noted that such concerns are also addressed in Rule 54 bis of the Rule.
11. Para. 12.
12. See Blaskic Decision, para. 10. In this decision the Trial Chamber, while noting that the "Defence [was] correct in construing that Sub-Rules 70(C) and (D) relate only to initial information provided confidentially and used solely for the purpose of generating new evidence" (para. 20), did not consider it necessary to consider the issue of interpretation of Rule 70 as regards the need that the information so obtained had also to have been used solely for the purpose of generating new evidence. In the Blaskic Decision the Trial Chamber found that the information involved met this "two-fold condition" (para. 20) and therefore did not find a "need (…) to consider any further the question of interpretation raised" (para. 21).
13. The Prosecutor v. Kordic and Cerkez ("Lasva Valley"), Case No. IT-95-14/2/2-T, Trial Chamber III, Confidential and ex parte "Order on Prosecution Request for Ruling Concerning the Testimony of a Witness" (hereinafter "Kordic and Cerkez decision"), 31 May 1999.
14. Brdjanin & Talic Decision, para. 18.
15. Ibid.
16. Para. 17.
17. Para. 16.
18. Article 54 (Duties and powers of the Prosecutor with respect to investigations)
3. The Prosecutor may:
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents[.]
19. Article 72 (Protection of national security information)
4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the Defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different source or in a different form; or
(d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules.
7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:

(a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:

(i) The Court may, before making any conclusion referred to in subparagraph 7 (a)(ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under the Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or

(b) In all other circumstances:

(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

20. Article 93 (Other forms of cooperation)
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
21. Para. 18.
22. Ibid.
23. Para. 19.