Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Mohamed Shahabuddeen

Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of:
16 July 1998





Office of the Prosecutor

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman


THE TRIAL CHAMBER of the International Criminal Tribunal for the Former Yugoslavia (hereinafter "the Tribunal"),

PURSUANT to Articles 20 and 22 of the Statute and Rules 54, 75 and 79 of the Rules of Procedure and Evidence (hereinafter "the Rules"),

NOTING the Prosecutor’s Motion for protective measures, filed confidentially on 2 June 1998 (hereinafter "the Motion"), as well as annexes A and B attached to the motion,

NOTING the Defence’s Response dated 29 June 1998 (hereinafter "the Response"),

NOTING the Decision of Trial Chamber I of 10 July 1997 on the Prosecutor’s Motions of 5 and 11 June 1997 for witness protection (hereinafter "the Decision of 10 July 1997"),

NOTING the Decision of Trial Chamber I of 11 November 1997 on the Prosecutor's Motion for video deposition and protective measures, (hereinafter "the Decision of 11 November 1997"),

CONSIDERING that the Prosecutor requests that the Trial Chamber order nine protective measures for three witnesses whom she intends to call to testify in the near future; that, in so doing, the Prosecutor is acting on behalf of the Government of the witnesses in question (hereinafter "the Government") and asserts that, in view of the nature of the positions and duties of those witnesses, both at the time of the facts and today, those measures are necessary to safeguard the national security of the State;

CONSIDERING that the nine protective measures requested are the following:

1. The said witnesses should testify in closed session (hereinafter "measure 1").

2. The parties and representatives of the Government should have the opportunity to make recommendations relative to the passages in the transcripts to be redacted for security reasons (hereinafter "measure 2");

3. The witnesses should testify under a pseudonym (hereinafter "measure 3");

4. The representatives of the Government should be permitted to be present in the courtroom during the hearing of the witnesses (hereinafter "measure 4");

5. Certain sensitive information should not be disclosed either to the media, to any third party or in any public proceeding (hereinafter "measure 5");

6. Certain specific excerpts of the prior witness statements should not be disclosed to the media, to any third party, or in any public proceeding (hereinafter "measure 6");

7. The testimony of protected witnesses should be used only in closed session during the testimony of other witnesses at the trial (hereinafter "measure 7");

8. The disclosure of the testimony of protected witnesses outside the courtroom or to a potential witness by a party should be the subject of an ex parte application before the Trial Chamber and the Government should be authorised to appear pursuant to such a request (hereinafter "measure 8");

9. Any proceedings held in respect of the application should be in closed session (hereinafter "measure 9");

CONSIDERING that, in its Response, the Defence consents to the adoption of measures 2, 4, 5, 6, 7, and 9, as described above; that the Trial Chamber consequently notes that the disputed points concern only the granting of measures 1, 3, and 8 as presented above;

CONSIDERING that, with respect to measure 1, the Prosecutor, basing her Motion on the previous Trial Chamber Decisions of 10 July and 11 November 1997, requests a closed session both for reasons of national security of the State in question and because a "personal safety concern S...C is apparent in the need to protect the identities and current postings of the witnesses"; that it is the position of the Defence that such protection is unnecessarily stringent insofar as protection might be ensured simply by moving into a closed session when the type of subjects discussed so require;

CONSIDERING that the Trial Chamber deems that the exceptional nature of the mission and nature of the duties of the witnesses concerned justify that strict protection be accorded not only to certain categories of information deemed sensitive, but also to the identity of those witnesses, in order to guarantee their personal safety; that it is appropriate to note that only a closed session permits ensuring such protection;

CONSIDERING that, in respect of measure 3, the Prosecutor requests the use of a pseudonym in order to conceal the identity of the witnesses should the redacted transcript of their testimony be disclosed; that the Defence objects to such additional protection which, given the possibility of holding a closed session, it considers to be redundant;

CONSIDERING that the Trial Chamber is of the opinion that the use of a pseudonym is intended to protect the witness both during and after testimony in respect of all necessary references subsequent to that testimony;

CONSIDERING that, regarding measure 8, the Prosecutor supports the need for a procedure to monitor the disclosure of all or part of the witnesses’ testimony, both in and outside the courtroom for use by one of the parties and submits, moreover, that such a measure would cause only minimal prejudice to the Defence because it has long known the identity of the witnesses; that the Defence asserts that such a measure is unjustified and would therefore needlessly lengthen the proceedings;

CONSIDERING that the Defence has been provided with the identity and the prior statements of the witnesses concerned in a timely manner and, concomitantly, has had ample time to prepare its cross-examination; that, in principle, the Trial Chamber is not in a position to assess whether and to what extent it might prove necessary for the Defence to use all or part of the testimony given at trial; that, under these conditions, while affording protection to the witnesses, it is important to allow the Defence to choose its own strategy; that for such a purpose, the rights of the accused will be sufficiently respected so long as the possibility remains for him to explain to the Trial Chamber ex parte, if necessary, the grounds which might make it necessary to use specifically certain passages of statements of the witnesses in question.


RULING inter partes and unanimously,

NOTES the agreement between the parties on protective measures 2, 4, 5, 6, 7 and 9 and GRANTS them,

ORDERS that the witnesses concerned shall testify in closed session and using a pseudonym,

STATES that it is the responsibility of the Defence to refer to the Trial Chamber any difficulty which might arise further to the implementation of measure 8.


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

Done this sixteenth day of July 1998
At The Hague
The Netherlands

Claude Jorda
Presiding Judge Trial Chamber I

(Seal of the Tribunal)