"Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness"(Order Releasing ex parte Confidential Decision of the Trial Chamber - 1 October 1999)

27 July 1999
Trial Chamber III (Judges Robinson [Presiding], Hunt and Rodrigues)

The issue

On 10 February 1999, the Prosecutor filed a confidential "Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness" (hereinafter "the Motion"). The Motion sought a ruling as to whether a former employee of the International Committee of the Red Cross (hereinafter "the ICRC") could be called to give evidence about facts which came to his knowledge by virtue of his employment (hereinafter "the Information").

The decision

The Trial Chamber decided that the ICRC enjoyed a right to non-disclosure under customary international law and that such evidence should not be given. Judge Hunt issued a separate concurring opinion.

On 27 July 1999, the Trial Chamber rendered its ex parte "Decision on the Prosecution Motion under Rule 73 for a ruling concerning the testimony of a witness". On 1 October 1999, after the parties had agreed to the Decision’s being made public, the Trial Chamber concluded that there was no reason for the Decision to remain confidential and thus lifted its confidential status.

The reasoning

In its Decision, the Trial Chamber first underlined the special significance of the issue being considered with regard to the Prosecution’s ability to establish the guilt of the accused and the ICRC’s interest in not having the exercise of its mandate impaired. The Trial Chamber also took into account the fact that the admissibility of evidence might involve the interest of third parties which would also have to be taken into account.

The information being considered for non-disclosure status came to the knowledge of the ICRC employee while he was carrying out official duties. Such information is regarded as belonging to the ICRC which has a legal interest in it. "By contrast, in cases where information is acquired by an individual in his private capacity, the entity has no legal interest."1 Equally, the ICRC cannot be said to have a legal interest in information collected while carrying out tasks outside its mandate. In the instant case, the fact that the information came to the knowledge of the potential witness through his work for the ICRC and that this information relates directly to the performance of the ICRC’s functions is not disputed.

The issue here is not whether the International Tribunal has jurisdiction over the ICRC or whether it can compel the ICRC to produce information but whether the ICRC has a "relevant and genuine confidential interest such that the testimony of a former employee [...] should not be admitted."2 The ICRC contends that it has a right to non-disclosure which the Prosecution denies.

As a matter of principle, the Rules of Procedure and Evidence establish a regime for the admission of evidence which is broad and liberal.3 But admission is not limitless. Apart from the provisions in the Rules themselves which might restrain the Chamber’s freedom to admit evidence, its discretion might also be constrained by customary international law.4 Since no provision dealing specifically with the issue at hand exists in the Rules,5 the Trial Chamber broadened the enquiry in order to ascertain whether any rule of customary international law impacts on admissibility.

The Trial Chamber separated its enquiry into three parts: first, it investigated the content of international law in order to determinate whether conventional or customary international law recognises that the ICRC has a right to non-disclosure of the Information; second, if such a right is established, it must be determined whether it should be balanced against the interest of justice on a case by case basis; third, if the Trial Chamber finds that the ICRC has a relevant confidentiality interest in the Information, it should decide whether protective measures could adequately protect this interest and meet the ICRC’s concern.

The Trial Chamber described in detail the ICRC’s role,6 principles7 and importance for the international community8 and portrayed it as a pivotal and unique institution.9 The Trial Chamber noted that the functions and tasks of the ICRC derive directly from international law, that is, the Geneva Conventions and the Additional Protocols. The Trial Chamber also noted that those instruments enjoy nearly universal participation and that they must be interpreted in the light of "their fundamental objective and purpose". With regard to the ICRC, this means that they must be interpreted as giving the ICRC "the powers and the means necessary to discharge its mandate effectively".10 The Trial Chamber also accepted the fact that the ICRC has consistently been striving to adhere to the basic principles on which it operates11 and concluded that the ICRC has had a consistent practice of not allowing its delegates and employees to testify. The release of public statements by the ICRC was not regarded as contradicting that finding, but could instead be said to reinforce it.12

The Trial Chamber further recognised that the ICRC’s practice of non-testimony is a consequence of the principles which underlie its activities, in particular, the principles of neutrality,13 impartiality14 and independence. The Trial Chamber admited that the successful exercise of the ICRC’s mandate could be jeopardised if, by testifying before courts, it lost the confidence of governments or the warring parties and that its confidentiality15 was thus a necessary attribute of the ICRC.

By agreeing to be bound by the Geneva Conventions, the States parties have not only contracted a conventional obligation to ensure non-disclosure of the Information in judicial proceedings but have also generally acquiesced to the ICRC’s special role. They have also  expressed their opinio juris as to these facts. The Trial Chamber thus declared that all States, and this Tribunal are bound by a rule of customary international law which, 1) requires them to ensure non-disclosure of the Information and 2) provides the ICRC with a right under customary international law to non-disclosure of the Information.

In those circumstances, a balancing exercise is excluded. The confidentiality interest of the ICRC and its claim to non-disclosure are overwhelming, absolute, unambiguous and unequivocal. "Its effect is quite simple: as a matter of law it serves to bar the Trial Chamber from admitting the Information."16

Consequently, the issue of protective measures does not arise since their use supposes that the evidence sought is admissible.

Finally, the Trial Chamber shed some light on two connected issues. First it made it clear that the Appeals Chamber Decision  on Binding Orders   applies to States, and not to international organisations. Second, the Trial Chamber stated that, though they might have common interests, the ICTY and the ICRC are two distinct institutions.17

Separate Opinion of Judge Hunt

While agreeing with the majority about the outcome namely that in this case evidence should not be given, Judge Hunt differed as to the reasoning used. He recognised the ICRC’s interest in protecting its neutrality and confidentiality but was not convinced that this interest in fact gave rise to an absolute right to non-disclosure. He was not persuaded that the material supplied by the ICRC amounted to a general practice of such magnitude that it can be regarded as an expression of an absolute rule of customary international law.

Drawing parallels from State practice with regard to public interest immunities, Judge Hunt suggested that a balancing exercise should take place between the ICRC’s interest in safeguarding its principles and mandate and the "powerful public interest that all relevant evidence must be available to the courts who are to try persons charged with serious violations of international humanitarian law, so that a just result might be obtained."18

Judge Hunt qualified that balancing exercise by putting a premium on the ICRC’s confidentiality interest and concluding that, in any case, "it would necessarily be rare that the evidence would be of such importance as to outweigh the ICRC’s protection against disclosure."19

In the present instance, the interests and arguments advanced by the Prosecution were regarded as insufficient.20 Judge Hunt thus reached the conclusion that in this case the balance clearly lies in favour of the ICRC and that the evidence should not be given. Implicitly, he left open the possibility that, under different circumstances, the Information might have to be given.

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1. Article 19(A) of the Directive on Assignment of Defence Counsel.
2. Article 19(D) of the Directive on Assignment of Defence Counsel.
3. Paragraph 3.
4. Article 5 of the Directive on Assignment of Defence Counsel: "In accordance with the facts of the individual case, a suspect or an accused shall be considered to be indigent if he does not have sufficient means to retain counsel of his choice."
5. Paragraph 7.
6. On that same day, a similar decision was rendered by Trial Chamber III in Prosecutor v. Kordic/Cerkez, IT-95-14/2-T.
7. Humanity, impartiality, neutrality, independence, voluntary service, unity and universality.
8. See paragraphs 49-50.
9. By underlining the ICRC’s specificity, the Trial Chamber opposes the argument that recognising a privilege to the ICRC would "open the floodgates" in respect of other organisations.
10. Paragraph 72.
11. Paragraph 51.
12. Paragraph 63.
13. Paragraph 53: "Neutrality means that the ICRC treats all on the basis of equality and, as to governments or warring parties, does not judge their policies and legitimacy".
14. Paragraph 53: "The principle of impartiality calls on the ICRC to perform its functions without taking sides".
15. Paragraph 55: "The principle of confidentiality […] refers to [the ICRC’s] practice not to disclose to third parties information that comes to the knowledge of its personnel in the performance of their functions."
16. Paragraph 76.
17. Paragraph 79.
18. Paragraph 17 of the Separate Opinion. According to Judge Hunt, the "correct test 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 (here the prosecution) as to outweigh the risk of serious consequences of the breach of confidence in the particular case. Both the gravity of the charges and the availability of means to avoid disclosure of the fact that the evidence has been given would be relevant to that determination. Where the breach of confidentiality leads to the serious risk of damage which exists in the present case, the test must be correspondingly more severe." (paragraph 35 of the Separate Opinion).
19. Paragraph 32 of the Separate Opinion.
20. See paragraphs 37 to 40 of the Separate Opinion.