Judge Claude Jorda, Presiding
Judge Mohamed Shahabuddeen
Judge Almiro Simões Rodrigues

Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of:
13 May 1999







The Office of the Prosecutor:

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

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman


TRIAL CHAMBER I (hereinafter "the 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 (hereinafter "the Tribunal"),

NOTING the Decision of 25 March 1999 in respect of the appearance of Jean-Pierre Thébault (hereinafter "the Witness"),

NOTING the Application for protective measures dated 19 April 1999 (hereinafter "the Application) presented by the Witness pursuant to Rules 75, 79, 81, 89 and 90 of the Rules of Procedure and Evidence (hereinafter "the Rules"),

NOTING the Judgement of the Appeals Chamber of 29 October 1997 on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997,

NOTING the provisions of Articles 20, 22 and 29 of the Statute of the Tribunal and Rules 54, 75, 79 and 89 of the Rules.

CONSIDERING that the Witness asserts that the measures are requested in order to guarantee both his personal safety and respect for his privacy and also to allow him to pursue his official duties which are both public and private and to avoid prejudicing any present and future external action taken by France; to ensure that the neutrality and impartiality of his colleagues in the European Monitoring Mission (ECMM) are not put into question by any party; and, lastly, to avoid having any confidential sources of information he might disclose put at risk by his testimony,

CONSIDERING that the Witness also asserts that if no protective measures were to be granted, his testimony before the Tribunal might disclose information whose disclosure would run contrary to the security interests of France or international or non-governmental organisations with which France co-operates,

CONSIDERING also that the Witness bases his Application on the French law on "national defence secrecy" and the duty of "discretion of public servants" although he notes that he was "officially relieved of his obligation to respect secrecy and discretion" by his authorities,

CONSIDERING that the Application also relies on the Judgement of the Appeals Chamber of 29 October 1997 and the Decision of Trial Chamber I of 11 November 1997 which was issued on the basis of Rule 70 of the Rules,

CONSIDERING that the Witness requests that six protective measures be granted,

CONSIDERING that the Trial Chamber first notes that the Witness has been summoned as the former ECMM regional mission chief in central Bosnia from late January to late October 1993; that from this perspective, and without needing to conduct a detailed examination of the conditions of service of the individual in question (who asserts moreover that he has always had the status of a French diplomat on mission) the Trial Chamber must first take care not to risk disturbing the proper conduct of operations of the European Commission both from its point of view and that of the contributing States,

CONSIDERING that the Trial Chamber recalls that, pursuant to Article 29 of the Statute, States are bound to co-operate with the Tribunal "in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law" and, in particular, for "the taking of testimony and the production of evidence"; that this obligation is of a general nature; that the Tribunal could not agree to limits on such co-operation being set unilaterally under conditions other than those set down by the Judges within the context of the Statute and the Rules; that, in this respect, the aforementioned Judgement of the Appeals Chamber of 29 October 1997 specifies the criteria and appropriate manner action is to be taken in the matter,

CONSIDERING that the Trial Chamber notes that the Witness or the authorities to whom he answered at the time of the facts in question could in no manner rely on Rule 70 of the Rules; that this provision which inter alia refers to "information which has been provided Sto the Prosecutor or which is in the possession of the accusedC on a confidential basis and which has been used solely for the purpose of generating new evidence" is, in fact, not applicable to the case in point as none of the conditions required for such application has been satisfied,

CONSIDERING that the Trial Chamber also notes that, in accordance with its Decision of 25 March 1999, the Witness has been summoned to testify only about "the matters of which he had knowledge that occurred within the scope of his then mission and that relate to the acts with which the accused has been charged",

CONSIDERING that it consequently deems that the Witness must essentially inform the Trial Chamber of information he has in this respect, testify about the matters relating to the crimes ascribed to the accused in the indictment or about matters relating to the accused himself and should therefore not speak about the sources of that information whether it touches directly upon the security of the ECMM or that of the State of which the Witness is a national,

CONSIDERING however that the Trial Chamber notes that the Judges of the Appeals Chamber concluded in their Judgement of 29 October 1997 after having reviewed the relevant international case-law and inter alia referred expressly in paragraph 62 of their decision to the Judgement of the International Court of Justice in the case known as The Corfu Channel case in a sense clearly different from the one set out in the Application, that a State could, exceptionally, refuse to disclose documents which might prejudice the interests of its national security provided, in particular: 1) that it is acting in good faith; and 2) that it proves to a Judge of the Trial Chamber designated to that end that the said documents might put its security at risk and have no real significance for the case; that, in the case in point, and except for those documents which the Witness might consider appropriate to provide, the Trial Chamber does not request that others be disclosed; that moreover the authorisation granted by the Secretary-General of the United Nations does not, in and of itself, constitute an authorisation to disclose documents,

CONSIDERING however that the Trial Chamber deems on its own authority and in view of the arguments put forth by the Witness in his Application and inter alia on the basis of the position he held in Bosnia and Herzegovina at the time the acts ascribed to the accused were committed that the explanations which the Witness will provide to the Trial Chamber might endanger the safety of civilian or military personnel on duty on the territory of the Former Yugoslavia and might create difficulties for the military and humanitarian action of the European Union, France or international or non-governmental organisations in that region,

CONSIDERING that the Trial Chamber emphasises its power pursuant to the provisions of Article 22 of the Statute and Rules 54, 75 and 79 of the Rules to ensure protection for witnesses; that those provisions must be construed as justifying that measures be taken both in respect of a witness and of the information in his possession when the disclosure thereof, or of its source, might have serious repercussions for the safety of this witness or a third party,

CONSIDERING lastly that the Trial Chamber, in accordance with Sub-rule 89(D) of the Rules, notes that it reserves the right to exclude any evidence if its probative value is substantially outweighed by the need to ensure a fair trial,

CONSIDERING that, under these conditions, the Trial Chamber deems it necessary to grant the

Application as specified in the disposition of the present Decision,


ORDERS Mr. Jean-Pierre Thébault to appear as a witness before the Trial Chamber on 16 June 1999 at 10.00 hours and states that the hearing may, if necessary, continue on the first appropriate following day;

ORDERS that the Witness’ testimony be given in closed session;

STATES that the testimony shall inter alia cover:

1) the development of the political and military situation in central Bosnia (political forces present, influence of political figures, relations between the politicians and the military, operation of the channels of authority: the chain or chains of command of the armies present in central Bosnia and inter alia the authority of the military commanders or civilian authorities over the military, military police, para-military and other armed forces in the region as well as any role played by the political leaders in this area);

2) the principal subjects of the meetings in which the witness participated and, if necessary, communication, attitudes, proposals or other matters discussed during those meetings, in particular, by the accused or his representatives especially in the following areas: a) arrangement, organisation, implementation and respect of cease-fires; b) civilian populations: maintaining order and security, movements of populations, status of the refugees, internment of civilians, conveyance of humanitarian assistance; c) investigations into crimes committed in the region, whoever the alleged perpetrators (inter alia, events which occurred in Ahmici);

3) the Witness’ perception of the accused’s personality both professionally and personally;

STATES that the Witness shall first make a spontaneous statement and that, although he may assist himself by relying on notes, he should not read a prepared statement; and INVITES the Witness to note that his spontaneous statement should not exceed three hours insofar as possible and that the parties shall each have about one hour to put their questions to him;

ORDERS that the scope of the questions asked by the Prosecutor and the Defence be limited to the scope of the Witness’ initial statement with the Trial Chamber reserving for itself the right to settle any dispute in that respect;

AUTHORISES the Witness to inform the Judges that the requested information is, wholly or in part, confidential;

AUTHORISES a maximum of two representatives of the French Government to be present in the courtroom while the Witness testifies and to address the Trial Chamber, if necessary outside the presence of the Witness and/or the parties, in order to present any reasoned request which they believe necessary for the safeguarding of the higher interests they have been assigned to protect;

RECALLS that both the Statute of the Tribunal and its Rules guarantee a fair trial and that the provisions of Sub-rule 89(D) of the Rules permit the Trial Chamber to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial;

ORDERS the Prosecution and the Defence not to disclose to any third parties, whoever they might be and under any pretext whatsoever, any part of the Witness’ testimony;

ORDERS that the transcripts of the Witness’ testimony not be subject to any disclosure.


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


Done this thirteenth day of May 1999

At The Hague

The Netherlands





Claude Jorda

Presiding Judge Trial Chamber I



(Seal of the Tribunal)