IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna
Mrs. Dorothee de Sampayo Garrido-Nijgh
7 June 2000
DECISION DENYING REQUEST FOR ASSISTANCE
IN SECURING DOCUMENTS AND WITNESSES FROM
THE INTERNATIONAL COMMITTEE OF THE RED CROSS
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Nancy Paterson
Ms. Suzanne Hayden
Counsel for the accused:
Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric
International Committee for the Red Cross:
Mr. Christopher Greenwood, Q.C.
Mr. Gabor Rona
THIS 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 ("International Tribunal"),
BEING SEISED of a "Motion for an Order Requesting Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross" filed by counsel for the accused, Stevan Todorovic (the "Defence") on 23 September 1999 ("Todorovic Motion for Order to ICRC"), seeking an order for judicial assistance in obtaining certain information from the International Committee of the Red Cross ("ICRC"),
NOTING the response of the Office of the Prosecutor ("Prosecution") filed on 4 October 1999, in which the Prosecution 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",
NOTING that, by Order dated 18 November 1999, the Trial Chamber granted leave to the ICRC to appear in this matter as amicus curiae, and stated that a further filing would be sought in respect of the Todorovic Motion for Order to ICRC after disclosure to the Defence of various material relating to the "Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness", issued by the Trial Chamber on 29 July 1999, and released as a public document by Order dated 1 October 1999 ("the ICRC Decision"),
NOTING the "Further Submission on Motion for Order to ICRC" filed by the Defence on 3 May 2000 ("the Further Submission"), filed after disclosure of the said material,
NOTING the argument of the Defence raised in the Further Submission1, that the Defence "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",
NOTING also the additional argument of the Defence that "any claim of privilege has been waived since the ICRC has made the reports available to the host country",
CONSIDERING that in the ICRC Decision the Trial Chamber stated that the issue to be considered was not whether the International Tribunal has jurisdiction over the ICRC and, in particular, was not whether the International Tribunal has the power to compel the ICRC to produce the Information but that, in the Trial Chambers view, the issue to be considered was whether the ICRC has 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 admitted2,
CONSIDERING that the ICRC Decision reflects the majority finding of the Trial Chamber that the ICRC has a right under the Geneva Conventions and the Additional Protocols3 to insist upon non-disclosure in judicial proceedings of information relating to the work of the ICRC in the possession of an ICRC employee4 and, further, that the ICRC has a right under customary international law to non-disclosure of certain information as defined in the ICRC Decision5,
CONSIDERING also that the Trial Chamber considered the application of the principle of res judicata in relation to the ICRC Decision and its effect on parties to this case who were not parties to the proceedings that led to that decision in 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 Material", issued on 28 February 2000, in which the Trial Chamber noted that "it remains open to Todorovic to proceed with Sthe Todorovic Motion for Order to ICRCC and to seek to persuade the Trial Chamber that Sthe ICRC DecisionC is wrong or can be distinguished in relation to the circumstances of [the Todorovic Motion for Order to ICRC]6"
CONSIDERING that the Defence has failed to establish to the satisfaction of the Trial Chamber either that its findings in the ICRC Decision are wrong or that the material the Defence seeks is of so different a nature to that at issue in the ICRC Decision that it should be distinguished,
CONSIDERING also that the Trial Chamber is not satisfied that the ICRC has waived its right of non-disclosure by providing copies of its reports to the host State, this being part of the fundamental task of the ICRC to protect and assist the victims of armed conflicts as provided for in the Geneva Conventions and Additional Protocols7,
PURSUANT to Rule 54 of the Rules,
HEREBY DENIES the Todorovic Motion for Order to ICRC.
Done in English and French, the English text being authoritative.
Judge Hunt appends a Separate Opinion to this Decision.
Dated this seventh day of June 2000
At The Hague
[Seal of the Tribunal]