Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004
Case name

Prosecutor v Alex Tamba Brima & Ors - Dissenting Opinion of Justice Doherty on the Prosecution’s Oral Application for Leave to be Granted to Witness Tf1-150 to Testify Without Being Compelled to Answer Any Questions in Cross-examination That the Witness
Law report citations
Media neutral citation
[2005] SCSL 136


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

PHONE: +1 212 963 9915
Extension: 178 7000 or +39 0831 257000 or +232 22 295995

FAX:
Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22
295996


TRIAL CHAMBER II


Before:
Justice Teresa Doherty, Presiding Judge
Justice Richard
Lussick
Justice Julia Sebutinde
Registrar:
Robin Vincent
Date:
22 September 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-04-16-T)


DISSENTING OPINION OF JUSTICE DOHERTY ON THE
PROSECUTION’S ORAL APPLICATION FOR LEAVE TO BE GRANTED TO WITNESS TF1-150
TO TESTIFY
WITHOUT BEING COMPELLED TO ANSWER ANY QUESTIONS IN CROSS-EXAMINATION
THAT THE WITNESS DECLINES TO ANSWER ON GROUNDS OF CONFIDENTIALITY
PURSUANT TO
RULE 70 (B) AND (D) OF THE RULES


Prosecution:

Defence Counsel for Alex Tamba
Brima
:
Luc Cote
Lesley Taylor
Melissa Pack

Glenna Thompson
Kojo Graham


Defence Counsel for Brima Bazzy
Kamara:

Andrew Daniels
Mohamed Pa-Momo Fofanah


Defence Counsel for Santigie Borbor
Kanu
:
Geert-Jan Alexander Knoops
Carry Knoops
Abibola E.
Manly-Spain


I have read the majority decision of my learned colleagues and, with the
greatest respect, must dissent from their opinion.

The submissions of the Prosecution and Defence and the facts leading up to it
are set out in the Majority opinion and it is unnecessary
to repeat them
herein.

Deliberations

  1. The
    application by the Prosecution that Witness TFI-150 not be compelled to answer
    questions that would lead to naming of his sources
    of the information contained
    in his reports to the office of the United Nations Commissioner for Human Rights
    is based on:
    • (1) the
      provisions of Rule 70 in particular Rule 70D of the Rules of Procedure and
      Evidence; and
    • (2) a claim of
      privilege from naming the source which “he regards as
      confidential”.
  2. The
    Defence jointly oppose the application. They argue answers identifying sources
    of information is not within the ambit of Rule
    70(B) or Rule 70 of the Rules in
    its entirety and that the sources of information “go to
    credibility”. They state that
    “those stories were doing the rounds
    in the rumour mill at the time [...], and were later found to be
    incorrect.”[1]
    They submit that if the witness is “allowed to withhold the source of his
    information, then the accused would effectively
    be barred from their right to
    examine evidence against” as guaranteed under Article 17(4)(e) of the
    Statute.[2]
  3. The
    Prosecution submission of privilege is based on the balance of competing, public
    interest in the role of the Human Rights Officer
    to report and publish and the
    public interest in protecting their sources.
  4. The
    Human Rights Officer’s duty is to report in unstable and occasionally
    dangerous environments and such reports are part of
    the information that the
    Security Council depends upon to assess and decide on action in maintaining
    peace and security and upholding
    the rule of law. It is on such information that
    international organisations and governments take political actions. In fact such
    information may be more vital to these bodies than media reports, as
    professional monitors gather information for mandated organisations.
    Further, in
    some cases the media may not show any interest to report about human rights
    abuses.[3] Government
    and International Organisations therefore rely heavily on such reports and there
    is an public interest in the work and
    the information of Human Rights Officers
    as there is in media reports.
  5. Prosecution
    state that the witness has assured his sources that he will protect their
    identity and on that basis they gave the information.
    It is the trust in the
    Human Rights Officer and his/her integrity that the Prosecutor seeks to enforce
    and protect and in so doing
    not to jeopardize future missions.
  6. I
    consider this is an important, even fundamental, part of ensuring that Human
    Rights Officer can collect information that such information
    is given free from
    fear of reprisal and in a sense of safety by informants.
  7. The
    Defence in reply say the Human Rights Officer and source will be fully protected
    by the name being written and given under seal.
    I do not consider that is the
    point. The point is the Human Rights Officer’s relationship of trust with
    his/her source is
    based on his/her undertaking. His role depends on maintaining
    the integrity of that undertaking. Any revelation sealed or otherwise,
    breaches
    that undertaking.
  8. Defence
    submit that the witness cannot rely on a letter from the United Nations,
    tendered in support of the Prosecution’s application
    for a closed session,
    as it permits him to give evidence without any fetter. I accept the reports
    etc., made by the witness have
    been made in the course of his employment and may
    be deemed to be the property of his employer. The Prosecution do not rely on
    that
    letter and, in any event, it is not the issue. The issue here is a matter
    of principle he considers imposed upon him to fulfil the
    undertaking not to
    reveal his source and the duty of trust this imposes upon him. Further the
    letter does not specifically mention
    confidential information received by the
    witness and therefore it is unclear whether the United Nations also waived the
    confidentiality
    of such information. Contrary to the Defence submission the
    letter states that the waiver “does not relate to the release of
    confidential documents of the United Nations, which is subject to separate
    authorization by the Secretary-General.” Asking
    the witness to testify
    about his confidential sources may deviate from the partially waived immunity.
  9. Defence
    further submit that the matters of principle now put before the Court are in a
    manual (stating the obligations and duties
    of a Human Rights Officer) which did
    not exist when the witness was a Human Rights Officer and, in effect, the Trial
    Chamber is asked
    to “give the manual retrospective
    effect”.[4]
  10. The
    Prosecutor has made it clear that the witness gave these undertakings to his
    sources of information at the time. The date of
    publication of training manuals
    does not make any difference to that undertaking or, to my mind, undermine the
    submission. Moreover,
    the Manual is not a legal statute per se and there was a
    practice that the employees had to abide to ever before the manual was
    published.
  11. Defence
    clearly have already assessed the standard of the evidence and decided it is in
    part, based on rumour and, hence unreliable.
    I am unclear from their submission
    why the actual name of the informant would vitiate or change that decision. Be
    that as it may,
    they stress that the witness information will be fully protected
    by a closed session and by writing the name which will be kept under
    seal.
  12. Clearly
    the Trial Chamber is being asked to weigh two competing public interests:
    • (1) protecting
      the sources of information given to a Human Rights Officer, when he reports in
      an unstable environment, and
    • (2) the
      Accused’s right to know the accusations against him and who is making
      those accusations.
  13. I
    first ask if the Trial Chamber can grant such a privilege. Privilege of
    information is specifically preserved in Rule 90(E) and
    Rule 97. Neither apply
    here.
  14. The
    Prosecution concede there is no precedent in the International Tribunals
    granting privilege to Human Rights Officer. In Prosecutor v. Simic the
    ICTY has considered that there is an absolute immunity from testifying for a
    former employee of the International Committee of
    the Red Cross
    (“ICRC”) in order to protect the impartiality of the
    ICRC.[5] As noted by the
    Appeal Chamber of the ICTY, “Trial Chambers have also granted or
    recognized privileges against testifying to
    employees and functionaries of the
    ICTY and to the Commander in Chief of the United Nations Protection
    Force”.[6]
  15. I
    note the Rules of ICTY recognising specific privilege are similar to those of
    the Special Court for Sierra Leone. In those decisions
    the Trial Chamber went
    outside those Rules and its decisions were upheld by the Appals Chamber. I also
    note the ruling in Prosecutor v. Simic recognised that the ICRC is a
    mandated organization and it was the “principles which underlie its
    activities” that caused
    the ICTY to protect its
    confidentiality.[7]
  16. This
    witness has served under the mandate of UNOMSIL and UNAMSIL. The mandate of
    UNOMSIL established by the Security Council Resolution
    1181 (1998) of 13 July
    1998 was, inter alia, to “[...] report on violations of
    international humanitarian law and human rights in Sierra Leone
    [...]”.[8] This
    mandate was carried over to UNAMSIL which was established by the Security
    Council in 1999 under Chapter VII of the United Nations
    Charter.[9] As in the
    decision of the ICTY on the ICRC this witness also acted on behalf of a mandated
    organization charged with duties in the
    field of international law and human
    rights.
  17. I
    bear in mind the provisions of Article 20 (3) of the Statute of the Special
    Court for Sierra Leone and I consider these persuasive
    authorities of the ICTY
    that a Trial Chamber may grant absolute or qualified privilege to a witness even
    if they are not clearly
    set out in the rules.
  18. It
    is in the interests of justice that a Trial Chamber is vested with a duty, on
    very rare occasions, not to compel a witness to answer
    certain questions on the
    grounds of privilege.
  19. The
    Appeal Chamber of ICTY in Prosecutor v. Brdjanin and Talic dealt with
    privilege from testifying by war correspondents. As in the instant case the
    issue was “a novel one” and “there
    [did] not appear to be any
    case law directly on the
    point”.[10] The
    Appeal Chamber considered the issue raised three subsidiary
    questions:

“Is there a public interest in the work of war
correspondents? If yes, would compelling war correspondents to testify before
a
tribunal adversely affect their ability to carry out their work? If yes, what
test is appropriate to balance the public interest
in accommodating the work of
war correspondents with the public interest in having all relevant evidence
available to the court and,
where it is implicated, the right of the defendant
to challenge the evidence against
him?”[11]

Substituting a Human Rights Officer for a war correspondent, I apply these
questions to the witness and the matter of principle he
seeks to uphold.

  1. The
    work of the Human Rights Officer in unstable and war environments involves
    collecting information that informs the United Nations
    Commission for Human
    Rights, the United Nations and the Security Council. There is ample indication
    on this in the number of reports
    prepared. Eight situation reports prepared
    between June 1997 and August 2000 have been sought to be admitted in this Court,
    these
    together with Security Council reports indicate the information and
    reports that must be prepared for the Security Council to intervene
    and uphold
    international peace and security, and therewith the rule of law and the
    protection of human rights.
  2. As
    noted in Prosecutor v. Brdjanin and Talic:

“In war
zones, accurate information is often difficult to obtain and may be difficult to
distribute or disseminate as well.
The transmission of that information is
essential to keeping the international public informed about matters of life and
death.”[12]

I consider the collecting of that information by a mandated Human Rights
Officer in order to alert the international and national
authorities about human
rights abuses so that they can take appropriate political action is in the
public interest.

  1. Would
    compelling a Human Rights Officer to reveal the sources of their information
    adversely affect their ability to carry out their
    work? The Witness through the
    Prosecution submission made clear his concern that revealing a source would be
    such a breach of confidentiality
    that it would jeopardise the relationship
    between Human Rights Officer and their informants and hamper their ability to
    work. The
    potential impact this will have upon the gathering of information
    and, in turn the decision making process, is grave. As stated
    in Prosecutor
    v. Brdjanin and Talic
    :

“Indeed, the legal differences
between confidential sources and other forms of evidence are likely to be lost
on the average
person in a war zone who must decide whether to trust a war
correspondent with
information.”[13]

  1. I
    note that the Appeal Chamber noted this in the context of the interviewee being
    charged with an offence, a situation that could
    also have eventuated here.
    Moreover, the factual situation remains the same: the interviewee must decide
    to trust the Human Rights
    Officer.
  2. I
    paraphrase the words of the Appeal Chamber in Prosecutor v. Brdjanin and
    Talic
    and apply it to the instant case:

“That compelling
[a Human Rights Officer] to [reveal sources] before the International Tribunal
on a routine basis may have
a significant impact upon their ability to obtain
information and thus their ability to inform the public on issues of general
concern.”[14]

  1. The
    Appeal Chamber stated the International Tribunal “will not unnecessarily
    hamper the work of professions that perform a public
    interest”[15]
    and, with respect, I adopt and apply that to the instant case.
  2. What
    test is appropriate to balance the public interest in accommodating the work of
    war correspondents with the public interest in
    having all relevant evidence
    available to the court? The Appeal Chamber in Prosecutor v. Brdjanin and
    Talic
    stated:

“A Trial Chamber must conduct a balancing
exercise between the differing interests involved in the case. On the one hand,
there
is the interest of justice in having all relevant evidence put before the
Trial Chambers for a proper assessment of the culpability
of the individual on
trial. On the other hand, there is the public interest in the work of war
correspondents, which requires that
the newsgathering function be performed
without unnecessary constraints so that the international community can receive
adequate
information on issues of public
concern.”[16]

  1. It
    is only when the evidence sought is direct and important to the core issues in
    that case that a Trial Chamber may compel a witness
    to answer. I am not
    satisfied on the submissions of the Defence that the naming of the
    Non-Governmental Organisation or the individual
    informant is important to the
    core issue in the case. They have not said so, on the contrary, they have
    already noted parts of the
    reports were “assertions [...] which were not
    true”[17]
    “those stories were doing the rounds in the rumour mill at the
    time”[18].
    Their assessment of the report verges on derisive.
  2. The
    reports are hearsay and the inability of the Defence to challenge the original
    source in cross-examination does not mean it must
    be excluded. This Trial
    Chamber has clearly ruled that these are matters of weight which will be
    assessed in due course. As noted
    in a recent decision:

“[...]
evidence may be excluded because it is unreliable, but it is not necessary to
demonstrate the reliability of the evidence
before it is
admitted.”[19]

  1. Therefore,
    in my view by admitting the evidence no prejudice would have been done to the
    defence as the Trial Chamber could have admitted
    it on the basis of Rule 89(C)
    of the Rules.
  2. Further,
    I disagree with the purely textual interpretation of Rule 70 of the Rules by my
    learned colleagues. They have stated that
    Rule 70 is not applicable as it was
    not shown that the Prosecution was in possession of the information which has
    been provided to
    the witness on a confidential basis. The rationale of the Rule
    was recognised by the ICTY Appeals Chamber in the case of the Prosecutor v.
    Oric
    , where it stated that Rule 70 encourages third parties to provide
    confidential information to the Parties, regardless of any further
    disclosure of
    that confidential
    information.[20] The
    same decision clarified that a Party did not need to be in the possession of the
    confidential information in order to seek its
    application.
  3. I
    consider that the public interest in ensuring a Human Rights Officer can
    maintain the confidentiality of his/her informants and
    so can seek information
    in the knowledge that the trust will not be betrayed in order to report fully
    to the United Nations and
    the International Community is of such importance that
    I would have granted qualified privilege.
  4. I
    am not satisfied by the Defence argument that the evidence sought is of direct
    and important value in determining a core issue in
    the case or that evidence on
    the facts stated cannot reasonably be obtained elsewhere.
  5. For
    the foregoing reasons, I would have allowed the Prosecution application.

Done at Freetown this 22nd day of
September 2005.





Justice Teresa Doherty
Presiding Judge


[Seal of the Special Court for Sierra Leone]


[1] Transcript, 14
September 2005, page 3 line 14.

[2] Transcript, 14
September 2005, page 4, line 20.

[3] On the absence
of the international media in conflict situations and its effects see Richard
Dowden, Comment: The Rwandan Genocide:
How the press missed the story, 103
African Affairs (2004), pages 283 - 290.

[4] Transcript, 14
September 2005, page 12, line 4.

[5] Prosecutor v.
Simic
, Case No. IT-95-9-PT, Decision on the Prosecution Motion under Rule 73
for a Ruling Concerning the Testimony of a Witness (Order
Releasing ex parte
Confidential Decision of the Trial Chamber – 1 October 1999), 27 July
1999.
[6]
Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-AR73.9, Decision on
Interlocutory Appeal, 11 December 2002 referring to Prosecutor v. Delalic et
al
., Case No. IT-96-21-T, Decision on the Motion Ex Parte by the
Defence of Zdravko Mucic Concerning the Issue of a Subpoena to an Interpreter, 8
July 1997 and
Prosecutor v. Blaskic, Case No. IT-95-14-T, Decision
of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness
of the Trial Chamber,
12 May 1999, para. 53.

[7] Prosecutor v.
Simic
, Case No. IT-95-9-PT, Decision on the Prosecution Motion under Rule 73
for a Ruling Concerning the Testimony of a Witness (Order
Releasing ex parte
Confidential Decision of the Trial Chamber – 1 October 1999), 27 July
1999.
[8] U.N. Doc.
S/Res/1181 (1998), para. 8.

[9] U.N. Doc.
S/RES/1270 (1999).

[10] Prosecutor
v. Brdjanin and Talic
, Case No. IT-99-36-AR73.9, Decision on Interlocutory
Appeal, 11 December 2002, para. 30.

[11] Ibid.,
para. 34.
[12]
Ibid., para.
36.
[13]
Ibid., para.
43.
[14]
Ibid., para. 44.

[15]
Ibid.
[16]
Ibid., para.46.

[17] Transcript,
14 September 2005. page 3, line 10.

[18] Transcript,
14 September 2005. page 3, line 14.

[19] Prosecutor
v. Brima et al.
, Case No. SCSL-04-16-PT, Decision on Joint Defence
Application for Leave to Appeal from Decision on Defence Motion to Exclude all
Evidence from Witness TF1-277, 2 August 2005, para. 6.

[20] Prosecutor
v. Oric
, Case No. IT-03-68-AR-73, Public redacted Version of ‘Decision
on Interlocutory Appeal Concerning Rule 70’ issued on
24 March 2004, para.
6.