Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
27 July 1999

PROSECUTOR

BLAGOJE SIMIC
MILAN SIMIC
MIROSLAV TADIC
STEVAN TODOROVIC
SIMO ZARIC

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EX PARTE CONFIDENTIAL

DECISION ON THE PROSECUTION MOTION UNDER RULE 73 FOR A RULING CONCERNING THE TESTIMONY OF A WITNESS

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The Office of the Prosecutor:

Mr. Grant Niemann
Ms. Nancy Paterson
Mr. Christopher Staker

Counsel for the International Committee of the Red Cross:

Mr. Alun Jones, QC
Mr. Christopher Greenwood, QC

I. INTRODUCTION

Pending before 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 (“the International Tribunal”) is an ex parte and confidential “Prosecutor’s Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness” (“the Motion”) filed by the Office of the Prosecutor (“the Prosecution”) on 10 February 1999. The Motion seeks a ruling from the Trial Chamber as to whether a former employee of the International Committee of the Red Cross (“ICRC”) may be called to give evidence of facts that came to his knowledge by virtue of his employment (hereinafter “the Information”). On the same date an “Application for Leave to Appear as Amicus Curiae Under Rule 74 on Behalf of the ICRC” (“the ICRC Application”) was filed. The Trial Chamber heard the Prosecution in a closed ex parte hearing on the issue of timeliness of the Motion on 9 March 1999, and subsequently issued an “Order granting leave to appear as amicus curiae and Scheduling Order” on 16 March 1999. It also sought the views of the Prosecution and the ICRC as to the need for an oral hearing on the issue. In accordance with the Trial Chamber’s Order, on 23 March 1999, the Prosecution filed the “Prosecution Submission Concerning the Proposal to Call a Former Employee of the ICRC as a Prosecution Witness” (“the Prosecution Submission ”).

On 23 March 1999, the ICRC filed an “Application for an Extension of Time Under Rule 127 in which to File Written Submissions on Behalf of the ICRC”. On 25 March 1999, the Trial Chamber issued an Order Granting Extension of Time in which to File Written Submissions. The Trial Chamber issued a further Scheduling Order on 1 April 1999.

On 13 April 1999, the ICRC filed its “Submission by the ICRC Concerning the Proposal to Call a Former Employee of the ICRC as a Prosecution Witness” (“ICRC Submission ”), with, inter alia, the annexed Opinions of Professor James Crawford (“ Crawford Opinion”) and Professors Jean Salmon and Eric David (“Salmon Opinion”), and affidavits in support of the ICRC position. On 20 April 1999, the Prosecution filed a “Prosecution Response to the Submission of the ICRC Concerning the Proposal to Call a Former Employee of the ICRC as a Prosecution Witness” (“the Prosecution Response”). On 28 April 1999 the ICRC filed a ”Request by the ICRC for an Oral Hearing Concerning the Proposal to Call a Former Employee of the ICRC as a Prosecution Witness” (“the ICRC Request for an Oral Hearing”). All of the above filings have been filed on a confidential and ex parte basis.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the Prosecution and of the ICRC, and having determined that an oral hearing is not necessary,

HEREBY ISSUES ITS WRITTEN DECISION.

II. SUBMISSIONS

A. The Prosecution

1. The Prosecution submits its Motion on an ex parte basis, as it involves the “sensitive issue of whether an employee of the International Committee of the Red Cross (ICRC) may be called as a witness”. The Prosecution describes the witness as an eye-witness who, as a former ICRC interpreter, accompanied ICRC staff on visits to places of detention and during exchanges of civilians supervised by the ICRC. The witness was interviewed by the Prosecution’s investigators on facts that came to his knowledge by virtue of his employment. The Prosecution emphasises that the witness took the initiative to contact the Prosecution and is willing to give evidence before the International Tribunal. The Prosecution wishes to call the witness and emphasises the importance of calling this particular witness, stating that his testimony is important to prove the guilt of certain of the accused. A brief summary of the types of matters to which the witness could potentially testify was attached as an annex to the Prosecution Submission.

2. The Prosecution acknowledges the general position adopted by the ICRC that its personnel should not be called upon to testify before courts of law because it could impair its ability to perform its humanitarian role in armed conflicts. While acknowledging the ICRC’s concerns, the Prosecution does not accept that, as a matter of law, ICRC personnel are entitled to claim any privilege or immunity that would protect them from testifying before the International Tribunal or that the circumstances of this particular witness engage any such claim. The Prosecution therefore proposed that the Trial Chamber hear oral submissions from the Prosecution and solicit the views of the ICRC by inviting it to appear as amicus curiae under Rule 74 of the Rules of Procedure and Evidence of the International Tribunal (“the Rules”), prior to determining whether, and under what conditions, the witness may testify.

3.The Prosecution presents more detailed arguments in support of its Motion in the Prosecution Submission. In the Prosecution’s view, the issue is whether a third party to the proceedings such as the ICRC is entitled to intervene to prevent a willing witness from testifying. The Prosecution asserts that the issues in contention between the ICRC and the Prosecution are: (1) whether the ICRC has a right to determine unilaterally that ICRC employees or former employees may not give evidence before the International Tribunal despite their willingness to do so, the Prosecution position being that it does not; (2) alternatively, whether it is for the Trial Chamber to determine whether protective measures could adequately protect a relevant confidentiality interest of the ICRC; and (3) if so, then it is for the Trial Chamber to determine whether, in this particular case the circumstances are so extreme that the ICRC has a relevant confidentiality interest which can only be protected by not allowing the witness to be called at all. Again the Prosecution argues that they are not . The Prosecution presents arguments on various issues which it anticipates the ICRC will raise, in particular as to immunity and privilege.

4. With respect to the ICRC’s general position, the Prosecution states that it understands the ICRC’s concern to be that national authorities might deny ICRC personnel access to places where persons protected by the Geneva Conventions¹ are located if they think that these ICRC personnel might subsequently testify in criminal proceedings about what they have seen and heard in those places. Although sympathetic to the ICRC concerns, the Prosecution reiterates its view that the ICRC does not enjoy, as a matter of law, any immunity or privilege that would enable it, unilaterally, to prevent any of its former employees from testifying.

5. The Prosecution contends that the Trial Chamber should make a determination on a case by case basis and should decide that a witness be precluded from testifying only in exceptional circumstances. It is the Prosecution’s contention that protective measures could afford appropriate protection to the ICRC interests.

6. As to immunity, the Prosecution submits the following arguments:

- the ICRC does not enjoy immunity from the jurisdiction of international courts as a matter of general international law (such immunity does not flow from the ICRC’s functional international legal personality, nor does it have any basis in treaty or customary law); and
- the assertion that an ICRC employee giving evidence in any judicial proceeding would jeopardise the ICRC’s ability to carry out its humanitarian mission is not proven.

The Prosecution also notes that the ICRC does make public statements concerning violations of international humanitarian law under certain conditions and that such public statements are difficult to reconcile with its arguments on this point.

7. With respect to the privilege argument, the Prosecution contends that witness privileges of this type, which are recognised under national law, are based on narrow and technical rules, whereas the Rules of the International Tribunal are broad and flexible. Where third-party confidentiality interests are to be protected by the International Tribunal, this must be done using a flexible approach so as to allow the evidence to be given whatever protection is appropriate in the particular circumstances, without excluding evidence unnecessarily. In support of its argument, the Prosecution relies, inter alia, on the Decision rendered by the Appeals Chamber on the subpoena issue in the Blaskic case (“Appeals Chamber Subpoena Decision”)². In its view, this case, which addressed the issue of national security claims of a State, should be relied on by analogy to address the issue of third-party confidentiality interests, and a confidentiality claim by the ICRC should be dealt with in the same way. The Prosecution thus concludes that the following procedure should be followed :

(1) it is not for the ICRC to determine unilaterally that a witness should not testify; instead, the ICRC should be required to raise any confidentiality claim before the Trial Chamber;
(2) the Trial Chamber should determine whether the ICRC has a bona fide claim to a legitimate confidentiality interest to which the International Tribunal should have regard and whether the reasons given in respect of that particular witness are persuasive;
(3) if the Trial Chamber finds that such a confidentiality interest exists, it should weigh it against the interest of justice and, in particular, it should balance the confidentiality interest against the need to ensure that all relevant and probative evidence be available to the Trial Chamber;
(4) in the light of that balancing exercise, the Trial Chamber should then decide what measures, such as protective measures. should be adopted to protect that interest .

8. The Prosecution notes that discussions with the ICRC have been held on the issue of the possible testimony of this witness over a period of time but that, ultimately , both sides remained firm on their positions.

B. The ICRC

9. The ICRC opposes the Motion. In the ICRC Application it asserts that the evidence of the proposed witness belongs to the ICRC as it originates from the ICRC’s operations . In addition, the witness signed a pledge of discretion, which remains valid, concerning his activities as an ICRC employee. In the ICRC Submission, the ICRC presents further arguments in support of its opposition, emphasising that these proceedings raise questions of considerable importance. It stresses that it has consistently taken the position that ICRC officials and employees, past and present, may not testify before any court or tribunal on matters which came to their attention in their working capacity . The ICRC submits that this would not only be contrary to its operating principles but would also have disastrous consequences for its operations.

10. The ICRC first notes that it is not contested that the witness would be called to testify about matters which he witnessed in his capacity as an ICRC employee, in particular, visits made by ICRC delegates to prisoner of war and civilian detention centres in Bosanski [amac and an exchange of prisoners supervised by ICRC delegates . It is also not contested that the witness wishes to testify. However, the ICRC contends that whether or not the evidence can be disclosed cannot depend upon the wishes of a former employee.

11. According to the ICRC, the issues to be addressed are: (a) whether, in the light of the evidence that ICRC testimony regarding its operations would seriously jeopardise its ability to fulfil its mandate, the International Tribunal has the power to require the ICRC to testify or to permit its staff to testify; and (b) may a former employee of the ICRC testify voluntarily, notwithstanding the duty of confidentiality. The ICRC submits that the answer to both questions should be negative. Further, in the ICRC’s opinion, there is a clear basis in international law for finding that the testimony of an ICRC employee should not be admitted.

12. The ICRC relies, inter alia, on the following arguments in support of its opposition: the ICRC’s international mandate, its operational principles and their application, its status of immunity, the privileged nature of its communications and the impact of such testimony on its operations, and the privilege or confidentiality doctrine in national law.

13. It is the ICRC’s general position that the testimony of a former ICRC employee would involve a violation of principles of international humanitarian law concerning the role of the ICRC and its mandate under the Geneva Conventions, the Additional Protocols ³ and the Statute of the ICRC. The ICRC submits that the testimony would jeopardise its ability to discharge its mandate in the future, as concerned parties (national authorities or warring parties) are likely to deny or restrict access to prison and detention facilities if they believe that ICRC officials or employees might subsequently give evidence in relation to persons they met or events they witnessed. This submission is supported by affidavits which , in the ICRC’s view, establish that its ability to work effectively for the implementation of international humanitarian law, especially in gaining access to prisoners of war and detainees, is dependent upon establishing a relationship of trust, in particular with the authorities holding those prisoners of war and detainees.

14. The ICRC relies on the mandate entrusted to it under the Geneva Conventions, the Additional Protocols and its Statute, together with its special status and role, to support its arguments. It places particular emphasis on the importance of respecting the principles of, inter alia, impartiality and neutrality, as well as the need for confidentiality in the performance of its functions. The ICRC notes that , by adhering to these principles, it has been able to win the trust of warring parties to armed conflicts and bodies engaged in hostilities, in the absence of which it would not be able to perform the tasks assigned to it under international humanitarian law. Further, the ICRC asserts that in carrying out its mandate it undertakes a duty of confidentiality towards the warring parties. An essential feature of that duty is that ICRC officials and employees do not testify about matters which come to their attention in the course of performing their functions. The ICRC position is based on its assessment that, if it were perceived that there was any likelihood or possibility that ICRC staff would testify, the warring parties would deny the ICRC access to their facilities. The ICRC notes, however, that this assessment is incapable of complete verification because the ICRC has not given evidence before courts. The ICRC submits that this assertion is supported by the affidavits attached to its Submission. The ICRC also notes that, although ICRC officials were permitted to testify in a very few cases related to the Second World War, the ICRC has consistently refused requests relating to subsequent conflicts .

15. With respect to the Prosecution argument based on the Appeals Chamber Subpoena Decision , the ICRC argues that the issues raised in the present case are not analogous to those considered by the Appeals Chamber in that case. It is the ICRC’s submission that the issue at hand does not involve a conflict between the interests of a State and the interests of an international organization charged with the enforcement of international humanitarian law. The ICRC contends that it is also an international body, which has its own separate mandate from the international community to work for the better implementation of international humanitarian law. The mandates of the two institutions, although separate, are complementary and both form part of the international “ordre publique”. The International Tribunal is thus asked to apply different facets of the same international interest and not to determine whether that international interest should be limited in response to a claim such as a State national security claim.

16. In response to the Prosecution’s comments on ICRC public statements, the ICRC notes that they are of a very general character and are made only in cases of major and repeated violations, as a means to stop an ongoing violation, and when the ICRC is confident that such statements will not prejudice its ability to discharge its mandate.

17. Considering the legal principles governing the relationship between the ICRC and the International Tribunal the ICRC argues that:

(1) the International Tribunal has no jurisdiction over the ICRC;
(2) the ICRC has its own mandate from the international community, separate from but complementary to that of the International Tribunal, which forms part of the law that the International Tribunal is required to respect;
(3) accordingly, the International Tribunal has a duty to respect the principle of confidentiality on which the ICRC operates and not to admit evidence which would involve a violation of that duty.

18. In the alternative, the ICRC submits arguments by analogy based on the doctrine of privilege in common-law systems and of professional secrecy in civil-law systems , although it acknowledges that an international tribunal seeks to apply general principles of law rather than to adopt in its entirety the approach of a particular legal system. In the ICRC’s opinion, the rules of national legal systems are not based upon narrow and technical rules, as argued by the Prosecution, but on broad principles. A privilege is recognised by national law because that law considers it important, in the public interest, to develop and protect a particular relationship and recognises that the relationship depends upon trust and confidentiality. The ICRC submits that very similar, if not stronger, considerations apply in the present case.

19. As a further alternative, this time to its primary submission that the evidence of the ICRC witness cannot be admitted, the ICRC further contends that, in the event the International Tribunal determines that it can admit the evidence, it also has a discretion to exclude it. In the ICRC’s view, the discretion of a court or tribunal to exclude evidence where there are sufficient reasons of principle and public policy is inherent in the judicial function. The ICRC contends that the International Tribunal should exclude evidence to be given without the consent of the ICRC unless the Prosecution can demonstrate that there is an overwhelming need to admit such evidence and that this need is strong enough to outweigh the need for confidentiality and the likely adverse effect on the ICRC’s ability to function. The ICRC argues that the following conditions must be met in order for the above-mentioned test to be satisfied:

(1) the crimes charged must be of the utmost gravity;
(2) the evidence must be indispensable, in the sense that the case could not be mounted without it; and
(3) admitting the evidence would not prejudice the work of the ICRC.

In the ICRC’s opinion, on the basis of the information currently available, in particular as to the substance of the evidence, these criteria are not met in the present case .

20. Finally, as to the possibility of adopting protective measures, the ICRC submits that such measures would not meet its concerns, as the nature of the evidence would make it clear that it originated from the ICRC. Even if disclosure were limited to the International Tribunal, the mere suggestion that the ICRC had provided evidence to the International Tribunal would be sufficient to cause grave damage to the ability of the ICRC to develop the necessary relationship of trust. The issue is whether the evidence may be disclosed to the International Tribunal and not whether evidence which has been disclosed may be confined within it.

21. The ICRC therefore requests the Trial Chamber to hold that the witness may not testify on matters of which knowledge was acquired in the course of, and in direct execution of, his duties as an employee of the ICRC.

22. In their Opinions attached to the ICRC’s Submission, Professors Crawford, Salmon and David addressed, inter alia, the following issues: the ICRC’s functional international personality, the principles on which it is based, the assertion that the testimony sought belongs to the ICRC and the necessity for the International Tribunal to take into account the ICRC’s position in light of the mandate conferred upon it by the international community. Numerous documents in support of the ICRC’s arguments are also attached to the ICRC Submission.

C. The Prosecution’s arguments in response

23. In its Response, the Prosecution recognises that this is not a question of whether the International Tribunal’s interests should prevail over the ICRC’s or vice versa , and that the interests of both institutions should be adequately protected. In the Prosecution’s opinion, the following issues are not disputed: that it is for the Trial Chamber to determine whether the ICRC has a bona fide claim to a legitimate confidentiality interest to which the International Tribunal should have regard; that the Trial Chamber could decide to adopt protective measures to protect that interest if found to exist; and that the Trial Chamber may, in extreme cases, of which this is not one, exclude the evidence when there are no other means to protect the confidentiality interest.

24. In the Prosecution’s view, there are two main issues of contention. First, it is for the Trial Chamber, and not for the ICRC, to decide whether the witness can appear before the International Tribunal or not. The Prosecution maintains its argument that the ICRC position is wrong in law. The second issue is whether the legitimate concerns of the ICRC can be protected by means other than preventing the witness from testifying, in particular, by permitting the witness to testify with the benefit of protective measures. The Prosecution does not dispute that the ICRC has a form of legal personality under international law nor does it dispute that the ICRC has a mandate recognised by the international community.

25. The Prosecution notes that the ICRC arguments are based on two alternative arguments : one that, under general principles of international law, the International Tribunal is bound to respect the confidentiality of official ICRC information and, two, that the evidence is subject to a doctrine of privilege analogous to privilege under domestic law. The Prosecution contends that there is no international rule which requires that the ICRC gives its consent before one of its former employees be allowed to testify before a court. It submits that this cannot be based on an analogous reasoning based on the law of diplomatic immunities and privileges, or on customary law. Further, the Prosecution submits that the International Tribunal cannot be legally bound to accept the ICRC’s assessment and that it would be an abdication of the judicial function for the International Tribunal to accept the ICRC argument as controlling.

26. In response to the ICRC’s submissions as to the nature of the relationship between the two institutions, the Prosecution argues that, where there is a conflict between the requirements of the mandates of two different and independent international institutions, neither one has a legal power to require the other to defer to its assessment of how the matter should be resolved. If no agreement can be reached following good faith attempts to do so, the Trial Chamber must make its own assessment of what is appropriate, having due regard to the ICRC mandate. Where the question is whether testimony should be excluded, the Trial Chamber should assess the potential damage to the ICRC on a case by case basis.

27. As to the privilege argument, the Prosecution further submits that there is no broad principle recognised in national systems generally that a doctrine of privilege or confidentiality will necessarily involve an absolute privilege of the kind claimed by the ICRC. The broad principle underlying doctrines of privilege and confidentiality in national law is simply that certain types of confidential communications will be afforded certain types of protections, in the public interest. The Prosecution contends that its approach is consistent with this principle.

28. Discussing the three requirements which the ICRC proposes should be taken into account in balancing the competing interests, the Prosecution argues that they should not each be treated as essential requirements and should be balanced against each other . Other factors such as the rights of the accused also need to be considered. The Prosecution reiterates that the evidence should only be excluded in the most extreme cases and that it is necessary to weigh the risk to the ICRC against the gravity of the offence and the importance of the evidence.

29. With respect to the importance of the evidence, the Prosecution submits that the Trial Chamber should rely on the assurances of the Prosecution that it regards this witness as very important to its case. The Prosecution contends that it would be inappropriate to provide the Trial Chamber with the witness’ statement at this stage of the proceedings so as to respect the rights of the accused should the witness not be called. The gravity of the offences can be judged from the indictment in this matter.

30. Lastly, the Prosecution submits that appropriate protective measures adopted by the International Tribunal would prevent the fact that an ICRC employee has testified from becoming known outside the International Tribunal and thus prevent any prejudice to its work. The Prosecution details seven practical measures that could, in its view, address this concern. The Prosecution argues that if appropriate orders were made, the degree of risk to the ICRC would be minimal and could not outweigh the interests of justice in ensuring that this evidence be considered by the Trial Chamber .

31. The specific relief requested by the Prosecution is:

(1) that the Prosecution be permitted to call the witness, subject to such protective measures as the Trial Chamber may order at a future time;
(2)that the Prosecution and the ICRC should continue to consult with each other with a view to reaching agreement on the appropriate protective measures;
(3)that in the event of such agreement, the Prosecution should file an application for protective measures on which the Trial Chamber will rule;
(4) that, in the event that agreement cannot be reached between the Prosecution and the ICRC by a specified date, the Prosecution should so advise the Trial Chamber and the Trial Chamber will then determine whether it will order any protective measures for the witness proprio motu;
(5) in the meantime, the Prosecution shall not be required to disclose details of this witness or his statement to the Defence.

D. The Request for a Hearing

32. The Prosecution originally requested oral arguments on this matter. However, in the Prosecution Response, the Prosecution concludes that oral argument on this issue is not necessary and asks the Trial Chamber to rule on the basis of the written submissions. The ICRC then filed the ICRC Request for an Oral Hearing, emphasising the importance of the issues involved and the danger said to be posed to the ICRC by an adverse decision of the Trial Chamber. The ICRC also noted that, if the Trial Chamber were to determine that the admissibility of such evidence should be decided on a case by case basis, balancing the importance of the evidence against the likely threat to the ICRC, then the ICRC had not yet been able to address the Trial Chamber fully on this.

33. In view of the detailed written submissions and supporting material, and in light of the findings set out herein, the Trial Chamber finds it unnecessary to hear oral argument on the Motion.

III. DISCUSSION

34. At the outset, the Trial Chamber states that it considers the issue at stake to be of special significance, in particular in view of the Prosecution’s submission that the Information is important to establish the guilt of certain of the accused , and of the ICRC’s claim that the very exercise of its mandate would be impaired if the Information were to be admitted. The Trial Chamber notes that the issue of the admissibility of the testimony of a witness can involve the interests of third parties and, if such interests exist, due account should be taken of them⁴. In view of this, the Trial Chamber deemed it particularly important to afford the ICRC an opportunity to present its views as amicus curiae.

A. Issues not in dispute between the Prosecution and the ICRC

35. The Trial Chamber first notes that the Prosecution and the ICRC agree that the following issues are not disputed:

- the Information came to the knowledge of the potential witness by virtue of his work for the ICRC as an interpreter, while he accompanied ICRC delegates during their visits to detention sites in places relevant to the indictment, and during an exchange of civilians under ICRC supervision;
- the potential witness is willing to testify; and
- the ICRC has an international legal personality, and its mandate was conferred upon it by the international community. However, the Prosecution and the ICRC disagree as to the consequences that flow from the ICRC’s status.

36. The Trial Chamber will briefly address the first issue on which there is agreement between the Prosecution and the ICRC, i.e., the origin of the Information, as it finds it necessary to assess the significance to the ICRC of the Information. It is the Trial Chamber’s view that the ICRC has an interest in this matter sufficient to entitle it to present arguments on the Motion if the Information is based on knowledge gathered by a former employee while carrying out official duties, as ICRC’s interests could then be potentially affected. It is acknowledged that a distinction should be drawn between information gathered in an official capacity and information gathered in a private capacity. If the information was obtained in the course of performing official functions, it can be considered as belonging to the entity on whose behalf the individual was working. It follows from this that the relevant entity can be considered to have a legal interest in such information and accordingly may raise objections to the disclosure of the Information. By contrast, in cases where information is acquired by an individual in his private capacity, the entity has no legal interest. Further, if the Information had been obtained in the course of carrying out tasks which do not fall within the competence of the ICRC, it follows that the ICRC could not claim an interest in relation to the non-disclosure of the Information.

37. In the instant case, it is not disputed that the Information was acquired in the course of official duties, namely during visits to places of detention and while attending an exchange of prisoners supervised by the ICRC. The Trial Chamber notes that, as will be discussed below, these functions are entrusted to the ICRC by the Geneva Conventions and form part of the ICRC’s mandate. The proposed witness would not have acquired the Information, had he not worked for the ICRC. The Trial Chamber is of the view that the Information relates directly to the performance of the ICRC’s functions under its mandate.

B. Issues in dispute and relevant issues

38. The issue is not whether the International Tribunal has jurisdiction over the ICRC and, in particular, it is not whether the International Tribunal has the power to compel the ICRC to produce the Information. In the Trial Chamber’s view, the issue to be considered is 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 admitted.

39. The issues raised by the Motion are primarily of an evidential nature, that is to say, they deal with questions relating to the admission of evidence. It is the contention of the ICRC that it has a right to the non-disclosure of the Information . The Prosecution, on the other hand, argues against that contention.

40. It is convenient therefore to examine the Rules in order to determine the extent to which they contain provisions that would affect the admission of the Information . In general terms, the Rules establish a regime for the admission of evidence which is wide and liberal. The Prosecution, in its submissions advocating the admission of the evidence, has stressed the wide powers of the Trial Chamber in admitting evidence⁵. Thus Rule 89 (C) provides for the admission of any evidence which is relevant and probative⁶, and for that reason the jurisprudence of the International Tribunal has clearly established the admissibility of evidence that in other jurisdictions might not be admissible, as being outside the personal knowledge of the witness (hearsay), and leaves it for the Trial Chamber to determine the weight to be accorded to it ⁷.

41. Notwithstanding the latitude of the discretionary power vested in a Chamber under Rule 89 (C) to admit any evidence that is relevant and probative, that discretion is not limitless, and indeed the Rules themselves place several limitations on the discretion. Thus Rule 89 (D) provides for the power to exclude evidence “if its probative value is substantially outweighed by the need to ensure a fair trial”. Another example of a qualification on the discretionary power in Rule 89(C) is the provision in Rule 95 which proscribes the admission of evidence “if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings”.

42. Quite apart from the provisions in the Rules themselves which affect the proper exercise of the discretionary power in Rule 89 (C), there is another situation in which the exercise of that discretion may be affected on a basis that has not been expressly provided for in the Rules. It is trite that the International Tribunal is bound by customary international law, not least because under Article 1 of its Statute it applies international humanitarian law, which consists of both customary and conventional rules, and its jurisprudence is entirely consistent with that approach . It follows, therefore, that the International Tribunal’s Rules may be affected by customary international law, and that there may be instances where the discretionary power to admit any relevant evidence with probative value may not be exercised where the admission of such evidence is prohibited by a rule of customary international law. A relevant area of enquiry in the instant case must therefore be the impact of customary international law on the admission of the Information.

43. Before embarking on that enquiry, it is as well to determine first whether, apart from the general provision in Rule 89 (C), there are any provisions in the Rules that specifically address the question of the admissibility of the Information. The only provision in the Rules that may be considered relevant to this question is the provision in Rule 97 for the treatment of communications between lawyer and client as privileged in certain circumstances⁸. Rule 97 does not address the questions raised as to the admissibility of the Information and, there being no provision in the Rules dealing specifically with this question , the enquiry must be broadened to ascertain whether there is a rule of customary international law that impacts on its admissibility.

44. The Trial Chamber thus finds that the following considerations are relevant to the determination of the issue at hand:

(1) whether under conventional or customary international law there is a recognition that the ICRC has a confidentiality interest that would entitle it to prevent disclosure of the Information;
(2) if the Trial Chamber determines that the ICRC has such a right under international law, whether this interest should be balanced against the interests of justice, on a case by case basis, having regard in particular to the importance of the Information to the Prosecution’s case;
(3) if the Trial Chamber finds that the ICRC has a relevant confidentiality interest in the Information, whether protective measures could adequately protect this interest and meet the ICRC’s concern.

1. Whether under conventional or customary international law there is a recognition that the ICRC has a confidentiality interest such that it is entitled to non-disclosure of the former employee’s testimony

(a) The ICRC’s mandate under conventional and customary international law

45. The ICRC presents arguments which are essentially based on the mandate entrusted to it by international law under the Geneva Conventions and Additional Protocols and on the principles derived from it, on which it operates, in particular the principles of neutrality and impartiality. The Prosecution submits that there is no rule of international law which requires ICRC consent before the Information may be admitted .

46. It is widely acknowledged that the ICRC, an independent humanitarian organization , enjoys a special status in international law, based on the mandate conferred upon it by the international community⁹. The Trial Chamber notes that the functions and tasks of the ICRC are directly derived from international law, that is, the Geneva Conventions and Additional Protocols . Another task of the ICRC, under its Statute, is to promote the development, implementation , dissemination and application of international humanitarian law.

47. The fundamental task of the ICRC to protect and assist the victims of armed conflicts is provided for in the following provisions of the Geneva Conventions and Additional Protocols: Article 9 of Geneva Conventions I, II, and III, and Article 10 of Geneva Convention IV provide for the humanitarian activities of the ICRC¹⁰. Article 81, paragraph 1, of Additional Protocol I¹¹ expands on this provision. Article 10, paragraph 3, of Geneva Conventions I, II and III, and Article 11, paragraph 3, of Geneva Convention IV spell out the ICRC’s right to substitute for the Protecting Powers¹². The system for the supervision of the internment of prisoners of war and civilians is established in Articles 126 and 143 respectively of Geneva Conventions III and IV¹³. Lastly, Article 3 common to the Geneva Conventions provides for the ICRC’s right of initiative in non-international armed conflicts¹⁴.

48. As is well known, the Geneva Conventions enjoy nearly universal participation as virtually all States are parties to the four Geneva Conventions¹⁵. It is also generally accepted that most of their provisions are regarded as declaratory of customary international law. The Trial Chamber is of the view that, by accepting to be bound by the Geneva Conventions, the States party to them have agreed to the special role and mandate of the ICRC.

49. As to the status and role of the ICRC, the Appeals Chamber of the International Tribunal has noted “the unanimously recognized authority, competence and impartiality of the ICRC, as well as its statutory mission to promote and supervise respect for international humanitarian law”¹⁶. In addition, the ICRC was requested by the President of the International Tribunal to inspect the conditions of detention and the treatment of accused persons in detention at the United Nations Detention Unit. In the letter of agreement, the ICRC is referred to as “being an independent and impartial humanitarian organization of long-standing experience in inspecting conditions of detention in all kinds of armed conflicts and internal strife throughout the world”¹⁷.

50. The specific status and role of the ICRC was also recognised by the General Assembly of the United Nations. “Considering the special role carried on accordingly by the ICRC in international humanitarian relations”, the General Assembly granted the ICRC the status of observer to the General Assembly¹⁸. The Trial Chamber notes that this resolution was sponsored by 131 States and adopted unanimously by the General Assembly. When introducing the resolution on behalf of the co-sponsors, the Permanent Representative of Italy to the United Nations referred to the ICRC in the following terms: “The special role conferred upon the ICRC by the international community and the mandate given to it by the Geneva Conventions make of it an institution unique of its kind and exclusively alone in its status .” On the same occasion, the United States representative stated that the “unique mandate of the ICRC … sets the Committee apart from the other international humanitarian relief organizations or agencies”¹⁹.

51. The widely acknowledged prestige of the ICRC and its “autorit� morale” are based on the fact that the ICRC has generally consistently adhered to the basic principles on which it operates to carry out its mandate. The fundamental principles on which the ICRC relies in the performance of its mandate are the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality²⁰. Of particular relevance to the issue at hand are the principles of neutrality, impartiality and independence .

52. These fundamental principles are contained in the Preamble of the Statutes of the International Red Cross and Red Crescent Movement²¹ which states that “the Movement should be guided by its Fundamental Principles”. The three principles of impartiality, neutrality and independence have been described as “derivative principles, whose purpose is to assure the Red Cross of the confidence of all parties, which is indispensable to it”²². They are derivative in the sense that they do not relate to objectives but to means . Neutrality and impartiality are means enabling the ICRC to carry out its functions . According to these principles, the ICRC may not be involved in any controversy between parties to a conflict.

53. The principle of impartiality calls on the ICRC to perform its functions without taking sides. According to the ICRC, impartiality “does in fact correspond to the very ideal of the Red Cross, which bars it from excluding anyone from its humanitarian concern”²³. According to the neutrality principle, the ICRC may not take sides in armed conflicts of any kind²⁴ and ICRC personnel should abstain from any interference, direct or indirect in war operations. The ICRC submits that, to comply with this principle, it must avoid behaving in a way that could be perceived by one of the warring parties, past or present, as adopting a position opposed to it²⁵. The principle of neutrality also requires that the ICRC not engage in controversies , in particular of a political, racial or religious nature. 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 legitimacy²⁶. The principle of independence calls on the ICRC to conduct its activities freely , and solely on the basis of decisions made by its own organs and according to its own procedures. Accordingly, it cannot depend on any national authority. This guarantees its neutrality.

54. Eight examples which, in the ICRC’s view, show the practical recognition that States and parties to conflicts give to the ICRC fundamental principles are provided in the affidavit of Angelo Gnaedinger, Delegate General of the ICRC, annexed to the ICRC submission (“the Gnaedinger Affidavit”) ²⁷. In the Crawford Opinion, Professor Crawford asserts that the principle of neutrality is widely recognised by States and by the United Nations²⁸, a view also supported by the Salmon Opinion²⁹.

55. The submissions of both the Prosecution and the ICRC also address the issue of confidentiality . The principle of confidentiality, on which the ICRC relies, refers to its practice not to disclose to third parties information that comes to the knowledge of its personnel in the performance of their functions. The ICRC argues that this principle is a key element on which it needs to rely in order to be able to carry out its mandate. It has been described as a “working tool”³⁰ or, more generally, as a practice. Confidentiality is directly derived from the principles of neutrality and impartiality³¹. The Trial Chamber notes that it is always referred to in relation to its humanitarian activities³². Further, all staff employed by the ICRC undertake to respect the principle of confidentiality. A pledge of discretion is incorporated in every employment contract³³.

56. That the ICRC consistently relies on confidentiality to carry out its mandate is also supported by State practice, in relation to agreements between States and the ICRC³⁴. It is emphasised in the Gnaedinger Affidavit³⁵ that confidentiality is of critical importance for the ICRC when negotiating access to detainees and presenting recommendations, and is sometimes a precondition for access. The Gnaedinger Affidavit also provides examples of instances where the ICRC was requested to testify, for example, before commissions of experts and national courts, and no further action was taken after the ICRC explained its position³⁶.

57. The ICRC’s practice as to confidentiality has also been recognised by the International Tribunal itself. In a letter addressed to the President of the ICRC, the former President of the International Tribunal, referring to the forthcoming visit of an ICRC representative to the International Tribunal, wrote “we will not deal with specific cases and, in addition, will fully respect the duty of discretion incumbent upon officials of the ICRC”³⁷. Similarly , the Prosecutor has stated: “I understand and appreciate the policy of the ICRC which precludes it from complying fully with some of our requests for information .”³⁸ The Trial Chamber notes, however , that this practice does not exclude any form of cooperation by the ICRC with the International Tribunal³⁹.

58. The Trial Chamber finds that there has been no effective rebuttal by the Prosecution of the ICRC’s submissions as to the general consistency of its practice of confidentiality .

59. A consequence of the fundamental principles of neutrality and impartiality, and of the working principle of confidentiality, is the ICRC’s policy not to permit its staff to testify before courts and, in particular, not to testify against an accused. The ICRC is of the view that any testimony by one of its employees, past or present, concerning information acquired while performing ICRC functions cannot be disclosed without the ICRC’s prior approval.

60. The Trial Chamber accepts the ICRC’s submission that it has had a consistent practice as to the non-testimony of its delegates and employees before courts since the Second World War⁴⁰. The ICRC acknowledges that it permitted evidence from three delegates to be filed before the International Military Tribunal at N�rnberg in 1946, in the form of written responses to questions submitted by the Defence. The ICRC submits that these written depositions did not contain any specific information about the alleged violations committed by the accused . The ICRC emphasises that the decision to disclose the evidence was taken by the ICRC( 41. This practice is incorporated in its R�glement interieur, dated 24 June 1998, which provide: “Should members of honorary members of the ICRC be called upon to testify in connection with legal proceedings – whether as parties to those proceedings, as witnesses or as expert witnesses – regarding facts which have come to their knowledge as a result of their membership of the ICRC, they must seek prior permission from the Assembly to do so.”⁴² Since that time, however, the ICRC has had a consistent practice of non-testimony⁴³. This practice has been recalled and relied upon on many different occasions by the ICRC⁴⁴. Headquarters agreements also contain a provision to this effect⁴⁵.

61. In addition, this practice has been specifically emphasised by the ICRC with respect to international criminal proceedings when submitting comments on the establishment of an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law on the territory of the former Yugoslavia ⁴⁶. As to ICRC involvement in war crimes proceedings, the ICRC reiterated that “any participation by the ICRC in war -crimes proceedings involving providing information or giving testimony would … place the institution’s work at serious risk”⁴⁷. The ICRC among others stated that any such participation “would violate the ICRC’s pledge of discretion and confidentiality vis � vis both the victims and the parties to conflicts”⁴⁸. No specific reference to a different approach, which in the Trial Chamber’s view would have been controversial , was incorporated in the Statute of the International Tribunal.

62. On the same issue, the ICRC reiterated, in a letter addressed to all Red Cross and Red Crescent Societies in 1994, that “any cooperation of this kind might be perceived by one or other of the parties to a conflict as taking a stand against them and might, as a consequence, have detrimental effects on the humanitarian operations , present and future of the Movement … especially those carried out in conflict zones”⁴⁹.

63. The Prosecution submits that the ICRC has not been consistent in its practice because it has issued public statements in relation to violations of international humanitarian law in specific conflicts. The ICRC rebuts the Prosecution submission, arguing that it only releases public statements when certain conditions are met and, in any case, only when it is convinced that its ability to carry out its mandate would not be prejudiced⁵⁰. The ICRC also submits that its public statements are very general and never mention individuals . The Trial Chamber does not find convincing the argument of the Prosecution that the release of public statements by the ICRC constitutes a departure from its confidentiality policy. On the contrary, it is convinced that the ICRC’s practice not to make public statements about specific acts committed in violation of humanitarian law and attributed to specific persons reflects its fundamental commitment to the principle of neutrality .

64. It is the Trial Chamber’s opinion that the ICRC’s principled position of non-testimony before courts can be regarded as a consequence of the principles which underlie its activities, in particular the principles of neutrality, impartiality and independence . The ICRC argues that its practice of non-testimony before courts is based on the concern that the breach of confidentiality would have the adverse effect of destroying the relationship of confidence on which it operates. While the Trial Chamber cannot embark on an exhaustive factual assessment of the ICRC’s claim, it will nonetheless proceed to a general assessment of the ICRC’s claim that its ability to carry out its mandate would be jeopardised if the Information were to be admitted .

(b) The impact of disclosure on the ICRC’s ability to carry out its mandate

65. As noted before, in order to carry out its mandate, the ICRC needs to have access to camps, prisons and places of detention, and in order to perform these functions it must have a relationship of trust and confidence with governments or the warring parties. For instance, in relation to prisoners of war, representatives of the ICRC may visit internees in their camps at any time and talk to them individually and without witnesses. These activities within the protective powers system depend on invitation or acceptance by the detaining power⁵¹. These authorisations in turn are based on a relationship of trust and confidence established by the ICRC with governments and warring parties. The ICRC also needs to gain the confidence of prisoners visited. It is the ICRC’s contention that the disclosure of information gathered by its employees while performing official duties would destroy the relationship of trust on which it relies to carry out its mandate . The ICRC also submits that admission of the Information would have a prejudicial effect on the safety of its delegates and staff in the field as well as the safety of the victims. The ICRC’s submissions are supported primarily by two affidavits , that of General Sir Rupert Smith and the Gnaedinger Affidavit. The Trial Chamber further notes that these concerns are also expressed in many ICRC documents attached to the ICRC Submission.

66. General Sir Rupert Smith states in his affidavit that, because the ICRC behaves in an impartial and neutral way with all parties to the conflict, “on this basis of trust it is possible for all parties engaged in the conflict to co-operate” with the ICRC. Further: “The essential prerequisite for their impartial, independent and neutral stance is that all are confident in the confidentiality of the information they gain". General Smith provides an example of the role played by the ICRC during the conflict in the former Yugoslavia in the enclave of Zepa in 1995. In his opinion , the ICRC was able to enter an agreement with the Bosnian Serbs regarding the evacuation of civilians because it was seen as an independent organization. General Smith holds the view that these civilians would most likely not have survived in the absence of intervention by the ICRC.

67. The view that the relationship of trust enables the ICRC to gain access to the victims is also expressed in the Gnaedinger Affidavit. It is reiterated that the effectiveness of the ICRC’s work depends upon access to the victims and that access is dependent on the will of the parties and on their perception of the ICRC and its working methods . The affidavit provides an overview of the working methods of the ICRC through the example of visits to persons deprived of their liberty and concludes that the receptiveness of a given authority to requests to visit prisoners of war, detainees or civilian internees is heavily dependent on two factors. The first is neutrality and the ability to ensure that only humanitarian considerations are taken into account . The second is independence and the ability to remain outside of political controversies . Confidentiality is essential in reinforcing both these factors. Mr. Gnaedinger emphasised that the ICRC has always insisted on maintaining independence and neutrality even with the United Nations, as a result of which it has been granted access to United Nations personnel in conflict situations, such as Somalia. The affidavit also emphasises the importance of locally recruited staff and their particular vulnerability to reprisals.

68. Mr. Gnaedinger is of the opinion that if national authorities believed that an ICRC employee could testify, “at best, it would be a major disincentive to co-operate , and at worst it would be the rationale for complete denial of access to all victims ”. He refers to four examples of situations where a suspicion as to the independence and neutrality of the ICRC arose as a result, emphasising the fragile nature of the relationship of trust in those circumstances. Mr. Gnaedinger concludes:

In fragile situations such as that currently prevailing in the Federal Republic of Yugoslavia where almost all other humanitarian organisations have had to leave and in a highly politicised context, it is crucial that the ICRC perceived as independent and neutral. I have no doubt that being seen as potential witnesses collecting evidence or as investigators, while carrying out humanitarian work under the ICRC mandate and using the Red Cross emblem, would destroy the image of neutrality and independence.⁵²

69. Nine letters from prominent individuals in the international sphere, stating their personal opinion that the ICRC’s ability to carry out its mandate would be jeopardised if it were called to testify before a tribunal, are attached to the Gnaedinger Affidavit . In particular, Mr. Carl Bildt wrote that giving testimony “could be perceived as a breach of its principles and modalities and would affect its effectiveness”⁵³.

70. The prejudicial impact that a breach of confidentiality would have on the ICRC’s activities was also emphasised by the President of the ICRC in a letter addressed to the President of the International Tribunal on 8 April 1994 in the following terms:

The commitment made by the ICRC to the governments and various warring parties demands that it not allow itself to be required to reveal what its staff have learned in the course of their work, in particular during visits to places of detention. Breaching the confidentiality of its relationship with those entities would most certainly lead to the ICRC being denied access to the victims of the situation concerned and would seriously jeopardise future action.⁵⁴

71. Although, for instance in the case of the conflict in the former Yugoslavia, functions of protecting powers were also carried out by other international organizations or representative, such as the Conference for the Security and Cooperation in Europe , and United Nations Human Rights Commission Special Rapporteur Mazowiecki⁵⁵, the ICRC’s role still retains a specificity derived from international law and the consistent adherence of the organisation to the principles on which it operates. The Trial Chamber also notes that on many occasions, and in particular in highly politicised situations, the ICRC is the only humanitarian organization granted access .

72. The ICRC has a pivotal role in the regime established by the Geneva Conventions and their Protocols to guarantee the observance of certain minimum humanitarian standards. This role is unique⁵⁶. The functions of the ICRC have been broadly described earlier⁵⁷ as those of protecting and assisting victims of armed conflicts by its right to be substituted for a protecting power, its right to visit places of detention of prisoners of war and to interview prisoners and its right of initiative in conflicts of a non-international character. The Geneva Conventions and their Protocols must be construed in the light of their fundamental objective and purpose as described above, and for that reason they must be interpreted as giving to the ICRC the powers and the means necessary to discharge its mandate effectively.

73. The analysis in the previous section has clearly indicated that the right to non -disclosure of information relating to the ICRC’s activities in the possession of its employees in judicial proceedings is necessary for the effective discharge by the ICRC of its mandate. The Trial Chamber therefore finds that the parties to the Geneva Conventions and their Protocols have assumed a conventional obligation to ensure non-disclosure in judicial proceedings of information relating to the work of the ICRC in the possession of an ICRC employee, and that, conversely, the ICRC has a right to insist on such non-disclosure by parties to the Geneva Conventions and the Protocols. In that regard, the parties must be taken as having accepted the fundamental principles on which the ICRC operates, that is impartiality, neutrality and confidentiality, and in particular as having accepted that confidentiality is necessary for the effective performance by the ICRC of its functions⁵⁸.

74. The ratification of the Geneva Conventions by 188 States can be considered as reflecting the opinio juris of these State Parties, which, in addition to the general practice of States in relation to the ICRC as described above, leads the Trial Chamber to conclude that the ICRC has a right under customary international law to non-disclosure of the Information.

75. The Trial Chamber will now consider the second issue.

2. Whether the ICRC’s confidentiality interest should be balanced against the interests of justice.

76. It follows from the Trial Chamber’s finding that the ICRC has, under international law, a confidentiality interest and a claim to non-disclosure of the Information , that no question of the balancing of interests arises. The Trial Chamber is bound by this rule of customary international law which, in its content, does not admit of, or call for, any balancing of interest. The rule, properly understood, is, in its content, unambiguous and unequivocal, and does not call for any qualifications. Its effect is quite simple: as a matter of law it serves to bar the Trial Chamber from admitting the Information.

77. Notwithstanding that position, the Trial Chamber finds it appropriate to deal with some of the arguments raised in the submissions of the Prosecutor and the ICRC.

78. First, the Appeals Chamber Subpoena Decision is not applicable to the instant case , which deals with the relationship between the ICRC and an international institution ; that Decision deals with the relationship between the International Tribunal and States under Article 29 of the Statute, which provision does not apply to international organisations.

79. Second, the Trial Chamber deems it important to touch on the issue of the relationship between the International Tribunal and the ICRC. They are two independent international institutions, each with a unique mandate conferred upon them by the international community. Both mandates are based on international humanitarian law and ultimately geared towards the better implementation thereof. Although both share common goals , their functions and tasks are different. The ICRC’s activities have been described as “preventive”, while the International Tribunal is empowered to prosecute breaches of international humanitarian law once they have occurred.

3. Whether protective measures could adequately meet the ICRC’s confidentiality interest

80. The Trial Chamber’s finding that there is a rule of customary international law barring it from admitting the Information necessarily means that the question of the adoption of protective measures does not arise. The use of protective measures proceeds on the basis that the evidence sought is admissible. As admission of the Information is barred by a rule of customary international law, there is no need to address the issue further.

IV. DISPOSITION

For the foregoing reasons

Pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal,

THE TRIAL CHAMBER DECIDES that the evidence of the former employee of the ICRC sought to be presented by the Prosecutor should not be given.

A Separate Opinion of Judge David Hunt is appended to this Decision.

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

_____________________________
Patrick Robinson
Presiding

Dated this twenty-seventh day of July 1999
At The Hague
The Netherlands

[Seal of the Tribunal]

1. 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (“Geneva Convention I”); 1949 Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (“Geneva Convention II”); 1949 Geneva Convention III Relative to the Treatment of Prisoners of War (“Geneva Convention III”); 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (“Geneva Convention IV”).
2. Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR 108 bis, A.C., 29 Oct. 1997 (“Appeals Chamber Subpoena Decision”).
3. 1977 Geneva Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts; 1977 Geneva Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (“Additional Protocols”).
4. ICRC Submission, Prosecutor v. Simic, Case No. IT-95-9-PT, 13 Apr. 1999, (“ICRC Submission”), Crawford Opinion, para.3.
5. Prosecution Submission, Prosecutor v. Simic, Case No. IT-95-9-PT, 23 Mar. 1999, (“Prosecution Submission”), para. 32.
6. Rule 89 (C) provides: “A Chamber may admit any relevant evidence which it deems to have probative value.”
7. Decision on the Defence Motion on Hearsay, Prosecutor v. Tadic, Case No. IT-94-1-T, T. Ch. II, 5 Aug. 1996; Decision on Prosecutor’s Appeal on Admissibility of Evidence, Prosecutor v. Aleksovski, Case No. IT-95-14/1-AR73, A. C., 16 Feb. 1999, finding that the transcript of proceedings from another Chamber was admissible as hearsay, and Dissenting Opinion in the same case that argued against the admission of the transcript of proceedings on the grounds, inter alia, that its admission was inconsistent with the general scheme for the admission of evidence established by the Rules, and that it conflicted with the lex specialis of Rule 94 bis on the testimony of expert witnesses.
8. Rule 97 (Lawyer-Client Privilege) states: “All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”
9. It is generally acknowledged that the ICRC, although a private organization under Swiss law, has an international legal personality, as agreed by the Prosecution and the ICRC; see also Crawford Opinion, supra n. 4, and ICRC Submission, supra n. 4, Salmon Opinion.
10. Article 9 of Geneva Convention III reads: “The provisions of the present Convention constitute no obstacle to the humanitarian activities which the ICRC or any other impartial humanitarian organisation may, subject to the consent of the Parties concerned, undertake for the protection of prisoners of war and their relief.”
11. Article 81, entitled Activities of the Red Cross and other, paragraph 1, concerned with humanitarian organizations reads: 1. The Parties to the conflict shall grant to the International Committee of the Red Cross all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts; the International Committee of the Red Cross may also carry out any other humanitarian activities in favour of these victims, subject to the consent of the Parties to the conflict concerned.”
12. Article 10, paragraph 3, of Geneva Convention III reads: “If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organisation, such as the ICRC, to assume the humanitarian functions performed by Protecting Powers under the present Convention.”
13. Article 126 of Geneva Convention III reads: “Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour …. They shall be able to interview the prisoners … without witnesses …. The delegates of the ICRC shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited.”
14. Common article 3 of the Geneva Conventions reads: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: An impartial humanitarian body, such as the ICRC, may offer its services to the Parties to the conflict….”
15. As of March 1999, 188 States are party to the Geneva Conventions.
16. Tadic (1995) I ICTY JR 435, para. 73.
17. Letter, 28 Apr. 1995, ICTY Basic Documents 1998, p. 381.
18. G.A. res. 45/6, 16 Oct. 1990, para. 1. In the Crawford Opinion it is noted that the ICRC was the first non-governmental body to be granted permanent observer status, Crawford Opinion, supra n. 4, para. 14(h).
19. ICRC Submission, supra n. 4, Gnaedinger Affidavit, attachment F.
20. Fundamental Principles of the International Red Cross and Red Crescent Movement proclaimed by the 20th International Conference of the Red Cross, Vienna, 1965, as revised during the 25th International Conference of the Red Cross, Geneva, 1986, contained in the Statutes of the International Red Cross and Red Crescent Movement.
21. Published in the Handbook of International Red Cross and Red Crescent Movement, 13th ed. 1994.
22. Pictet J., The Fundamental Principles of the Red Cross, Commentary, Henri Dunant Institute, Geneva, (1987) p.48.
23. Ibid., p.49.
24. Ibid., p.54.
25. Salmon Opinion, supra n. 9, p.9.
26. Pictet, op. cit., p.59.
27. Gnaedinger Affidavit, supra n. 19, para. 20, pp. 7-9.
28. Crawford Opinion, supra n. 4, para.16.
29. Salmon Opinion, supra n. 9, paras. 9 and 10.
30. Ibid., para. 9.
31. According to Professor Salmon, it is “either required for the operational benefit of the ICRC by specific provisions of international humanitarian law treaties, or implied as the best means for the organisation to carry out its other missions.” Ibid., paras. 9 and 10.
32. See, for instance, Article 126 of Geneva Convention III and Article 143 of Geneva Convention IV, supra, n.13.
33. See ICRC Submission, supra n. 4, affidavit of Werner Hupfer. The Trial Chamber notes that the proposed witness, under the terms of his employment contract, is bound to secrecy. The Trial Chamber does not address the issue of the breach of an employment contract as this specific question is not before it. However the Trial Chamber finds it relevant in assessing the consistency of the conduct of the ICRC as to the protection of the material gathered by its officials or employees in the performance of its mandate.
34. For example, Article 10, paragraph 3, of the Headquarters Agreement with the Republic of Croatia reads in relation to members of the ICRC delegation: “They shall enjoy immunity from personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or written and all acts done by them in the discharge of their official duties, immunity from legal process of any kind, even after they have left the service of the delegation. They shall not be called as witnesses.” Gnaedinger Affidavit, supra n. 19, Attachment O. A similar provision is to be found, for instance, in agreements with Belgium, Kuwait, the Philippines, Switzerland, the Russian Federation, Rwanda and Turkmenistan.
35. Gnaedinger Affidavit, supra n. 19, p.11, citing a specific example.
36. Ibid., para. 57-60, pp. 20-21.
37. Letter, 2 Nov. 1995, ICRC Submission, supra n. 4, Annex 5, attachment 1.
38. Letter, 7 Dec. 1995, ibid., attachment 2.
39. See, for instance, letter 12 June 1995, ibid., attachment 3.
40. Gnaedinger Affidavit, supra n. 19, para. 56, p.19.
41. Ibid., para. 55, p.19.
42. R�glement Interieur du CICR du 24 Juin 1998, Article 6 (unofficial translation).
43. Dissertation by A. Faite, ICRC Submission, supra n. 4, Annex IV, p.12.
44. See Gnaedinger Affidavit, supra n. 19.
45. Ibid., Attachment O.
46. Some Preliminary Remarks by the ICRC on the setting up of an international criminal tribunal for the former Yugoslavia (Security Council Resolution 808 (1993)), reprinted in Morris and Scharf, Insider’s Guide to the ICTY, vol. II, pp. 391-398.
47. Ibid., p. 396.
48. Ibid.
49. ICRC Submission, supra n. 4, Annex 5, attached document 10.
50. These conditions are detailed in the Gnaedinger Affidavit, supra n. 19, at paragraph 39: (1) the ICRC delegates have witnessed the violations with their own eyes, or the existence or extent of those breaches were established by reliable and verifiable sources; (2) the violations were major and repeated; (3) the steps taken confidentially have not succeeded in putting an end to the violations; (4) such publicity is in the interest of the persons or populations affected or threatened.
51. However, in resolution 771 of 13 August 1992, the Security Council called on all the parties to the conflict in Bosnia and Herzegovina to grant all responsible international humanitarian organizations, and the ICRC in particular, access to camps, prisons and detention centres in the former Yugoslavia.
52. Gnaedinger Affidavit, supra n. 19, para. 85.
53. Ibid., Attachment R.
54. Ibid., Attachment PQ.
55. Fleck (ed) Handbook of Humanitarian Law in Armed Conflicts, p.704.
56. For this reason, the finding by the Trial Chamber that the ICRC has a right to non-disclosure does not “open the floodgates” in respect of other organizations.
57. See supra, para. 47.
58. See analysis as to impact of disclosure on ability of ICRC to carry out its mandate, supra, paras. 52 - 58.