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

Prosecutor v Alex Tamba Brima & Ors - Separate and Concurring Opinion of Hon. Justice Geoffrey Robertson, Qc (SCSL 16 of 2004) [2006] SCSL 65 (26 May 2006);

Law report citations
Media neutral citation
[2006] SCSL 65


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THE APPEALS CHAMBER


Before:
Justice Raja Fernando, Presiding
Justice George Gelaga King
Justice
Emmanuel Ayoola
Justice Renate Winter
Justice Geoffrey Robertson, QC


Registrar:
Mr. Lovemore Munlo, SC
Date:
26 May 2006
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-2004-16-AR73)


SEPARATE AND CONCURRING OPINION OF
HON. JUSTICE
GEOFFREY ROBERTSON, QC


Office of the Prosecutor:
Luc Côté, Lesley
Taylor,
Nina Jørgensen, Melissa Pack
Defence Counsel for Alex Tamba Brima:
Glenna
Thompson, Kojo Graham

Amici Curiae
Defence Counsel for Brima Bazzy
Kamara:

Andrew K. Daniels, Mohammed Pa-Momo Fofanah
Human Rights Watch,
UN High Commissioner for Human Rights,
Amnesty
International
Defence Counsel for Santigie Borbor Kanu:
Geert-Jan
Alexander Knoops, Carry Knoops, Abibola E. Manly-Spain


Introduction


  1. This
    appeal raises important issues regarding the testamentary privileges of
    witnesses who have worked in and reported from conflict
    zones on behalf of
    international organisations. Although judicial consideration has been given to
    the general compellability as
    witnesses of Red Cross
    employees[1] and war
    correspondents,[2] there
    has been no international court decision relating to a class of witness
    described compendiously as “human rights monitors”,
    willing to step
    into the witness box but reluctant when called upon to identify those persons
    who, at some risk to themselves, have
    vouchsafed to them some of the information
    they relate in their evidence to the court.
  2. There
    is a presumptive privilege recognised in international law for journalists to
    protect their sources: see the European Court
    of Human Rights judgement in
    Goodwin v UK.[3]
    That privilege is implicit in the freedom of expression guarantee (Article 10
    European Convention Human Rights; Article 19 International
    Covenant on Civil and
    Political Rights) because if newsworthy information cannot be divulged to
    journalists in confidence, then much
    will not be divulged at all: the
    media’s role as watchdog for the public interest would be circumscribed.
    Although treated
    as a “privilege” available to the journalist
    witness, it is really a reflection of the public interest in protecting
    the
    sources’ right of free speech in circumstances when identification would
    result in reprisals for exercising it. To what
    extent can this reasoning be
    applied to a “human rights monitor”, in this case an official
    employed by the UN to report
    on human rights abuses in Sierra Leone to the
    Secretary General to inform his reports to the Security Council? To what extent
    may
    it apply to “human rights monitors” in the garb of researchers
    and investigators employed by NGOs, such as Amnesty International
    and Human
    Rights Watch, to provide material for their published reports? And if such
    “monitors”--I would prefer to call
    them, generically, “human
    rights reporters” –come to testify for the prosecution in a criminal
    trial, can the court
    protect them from a cross-examination exposing their human
    sources whilst at the same time upholding the rights of the defence, notably
    the
    basic right to test the reliability of prosecution evidence?
  3. On
    these difficult questions, the answers to which are still evolving in
    international courts, we have had the benefit of extensive
    and well-argued
    submissions by the Prosecution and Defence teams and we are additionally
    grateful to the UNHCHR, Amnesty International
    and Human Rights Watch for their
    detailed amici submissions. The issue in this case has been decided by
    the full court, whose judgement I join, by a purposive interpretation of
    Rule 70
    which permits this particular witness to testify without fear of being compelled
    to disclose the names of individuals who
    have placed their trust in him. But
    this case requires, in my view, an eventual appreciation and analysis of the
    wider issue of
    testamentary privilege, which provides an alternative and in some
    ways more satisfactory means of resolving not only this case but
    others that may
    follow, where the witness has not supplied information to the Prosecutor under
    Rule 70(B) by the Defence.

The Open Justice Principle


  1. This
    appeal arises from an application made by the Prosecution in the AFRC trial on
    13 September 2005 in relation to protected Witness
    TF1-150, described in open
    court as “a staff member of the United Nations who was a human rights
    monitor in Sierra Leone”.
    It tendered a letter from the UN which waived
    his and that organisation’s immunity rights so that he might
    “testify
    freely”, on condition that he be permitted to do so in
    closed court. The Prosecution’s first application was to close
    the court,
    and then to obtain an advance ruling from the Trial Chamber that when giving his
    evidence, the witness should not be compelled
    under cross-examination to name
    any human source from which he had received information and upon which he had
    drawn for his evidence.
    There was good reason for the Prosecutor’s
    caution. A few months previously there had been a testimony from a human rights
    reporter in closed session in the CDF trial before another Trial Chamber, which
    had, by a majority, ruled that he could be compelled
    to identify his sources.

  2. That
    CDF order should have been appealed, but the delay had been caused by the
    failure of the dissenting judge to append his judgment
    to that of the court
    – a practice to which the appeals chamber has now put a
    stop.[4] What does
    concern me is that this important decision in the CDF case had been rendered in
    closed court and had not been made public,
    so Defence Counsel in this case were
    not allowed to see a copy and even in this appeal the “confidential”
    judgement in
    the CDF case was not supplied to our amici. If it is really
    necessary (and I stress necessary – not just convenient or desirable) to
    sit in closed session, any decision
    made in that session must nonetheless be
    speedily made public – if it is necessary (in the sense I have already
    emphasized)
    to remove names or identifying details, then that can be done by a
    simple process of redaction. If justice requires that paragraphs
    or parts of
    the judgement remain confidential to the parties, then they can be edited out of
    the version placed on public file.
    It is the duty of every Chamber to ensure
    that its decisions become public as soon as practicable: it is incumbent upon
    judges under
    Rule 4(B) of the Practice Directions on Document Filing to ensure
    that a version of the judgement, however redacted or heavily edited
    to remove
    confidential material, is placed on the public file.
  3. Any
    application to go into closed session must be closely scrutinised by the court.
    I am far from convinced that the condition imposed
    by the UN on the waiver of
    its immunity in this case was justified and I do not necessarily accept (we have
    heard no argument on
    this point) that its immunities under Articles V and VII of
    the 1946 Convention on the Privileges and Immunities of the UN apply
    to
    testimony by officials in international courts set up by the UN itself. The UN
    and other organisations volunteering employees
    as witnesses should appreciate
    the importance of the open justice principle. It is enshrined in all human
    rights instruments. Its
    contribution to forensic fairness is explained by
    Wigmore:

Its operation in tending to improve the quality of testimony is
twofold. Objectively, it produces in the witness’s mind a disinclination
to falsify: first, by stimulating the instinctive responsibility to public
opinion, symbolised in the audience, and ready to scorn
a demonstrated liar; and
next, by inducing the fear of exposure of subsequent falsities through the
disclosure by informed persons
who may chance to be present or to hear of the
testimony from others present. Objectively, it secures the presence of those
who
by possibility may be able to furnish testimony in chief or to contradict
falsifiers and yet may not have been known beforehand to
the parties to possess
any information.[5]


  1. Justice
    Bertha Wilson in the Supreme Court of Canada has accurately summarised the
    modern reasons for the open justice principle:

...the public interest in open trials and in the ability of the
press to provide complete reports of what takes place in the courtroom
is rooted
in the need (1) to maintain an effective evidentiary process; (2) to ensure a
judiciary and juries that behave fairly and
that are sensitive to the values
espoused by the society; (3) to promote a shared sense that our courts operate
with integrity and
dispense justice; and (4) to provide an ongoing opportunity
for the community to learn how the justice system operates and how the
law being
applied daily in the courts affects
them.[6]


  1. These
    reasons carry force in international criminal courts. It must be recognised,
    however, that the principle is limited by what
    is necessary in the interests of
    justice itself: closed sessions are acceptable where justice cannot be done at
    all if the hearing
    proceeds in public. This may be more common in war crimes
    courts sitting in former war zones, where the need to protect witnesses
    from
    reprisals is for obvious reasons much greater than in the domestic courts of
    countries at peace. But before approving applications
    from one or even both
    parties to anonymise witnesses and close courtrooms, judges must first consider
    the sufficiency of their powers
    to protect witnesses and security information by
    taking lesser measures. For example, they have power to close their court for
    short
    periods so that a particularly sensitive question can be discussed in
    private, instead of shutting the doors on the entire testimony
    of a particular
    witness. They have power to direct, even retrospectively, that certain
    sensitive evidence, if inadvertently given
    in open court, should not be
    reported. They have, as will be seen, power to protect witnesses from being
    required to divulge sensitive
    information, including their sources. They have
    many other powers to protect witnesses and victims. It may be that the UN would
    not have insisted upon a closed hearing as a condition of waiving immunity had
    it been aware of these safeguards, or had they been
    specifically raised with the
    court beforehand.
  2. The
    evidence of the UN witness had long before been disclosed to the Defence. It
    consisted both of his direct observations of the
    war and of what others had told
    him of the “widespread and systematic” commission of certain war
    crimes in some areas.
    This was relevant but secondary evidence: it was directed
    to establish an element of the crime charged (namely the widespread and
    systematic nature of the attacks) but did not directly connect any defendant
    with an offence. Much of it was already a matter of
    public record and could
    have been given in open court without any danger to the UN or to the witness and
    his sources, so long as
    the court protected him from having to name them.

The Trial Chamber Decision


  1. Trial
    Chamber II initially granted the Prosecution’s application to close the
    court but soon realised that it was inappropriate
    to hear the legal argument in
    closed session. Its decision was delivered in open court, without identifying
    the UN employee by name.
    The majority (Judges Lussick and Sebutinde) decided,
    as had the majority in Trial Chamber I in the CDF case, that Rule 70 was
    inapplicable.
    They then went on to state as their ratio:

...whereas the Trial Chamber recognises the privileged relationship
between a Human Rights officer and his informants as well as the
public interest
that attaches to the work of Human Rights officers gathering confidential
information in the field, we do not think
that the privilege and/ or public
interest should outweigh the rights of the accused persons to a fair trial as
guaranteed by Article
17 of the Statute. In any event, we are of the view that
the protective measures pertaining to a closed session under Rule 79 are
more
than sufficient to maintain the confidentiality of any information that witness
TFI-150 may divulge in the course of his testimony,
without the need for
additional measures whose effect is to curtail the statutory rights of the
accused.[7]


In other words, the majority recognised a public interest in protecting the
identity of sources of information given to human rights
monitors, but felt they
would be sufficiently protected if they were named in closed session, after
full-blooded cross-examination.


  1. Hon.
    Justice Doherty dissented, principally on the ground that human rights monitors
    had a qualified privilege to protect the identity
    of sources to whom they had
    promised anonymity, just like the war correspondents whose position in this
    respect had been considered
    by the ICTY Appeals Chamber in the
    Brđanin
    case,[8] upon which she
    drew extensively for her conclusion that the balance of public interest favoured
    source protection, even in closed
    courtrooms. She described the public interest
    thus:

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 [...]”
This mandate
was carried over to UNAMSIL which was established by the Security
Council in 1999 under Chapter VII of the United Nations Charter.
...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. ...[they]
rely
heavily on such reports and there is a public interest in the work and the
information of Human Rights Officers as there is in media
reports. ...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,
...ensuring
that Human Rights Officer (sic) can collect information [...] given
free from fear of
reprisal.[9]


Rule 70


  1. I
    can well understand the confusion in both Trial Chambers as to the
    interpretation of Rule 70. Its sub-rules are badly drafted
    and
    elliptically expressed and it is to be hoped that the expansive interpretation
    now provided by the Appeals Chamber will clear
    up some of the problems. The
    Rule itself seems to have originated by considering the possible need for ICTY
    Prosecutors to obtain
    secret surveillance evidence – especially telephone
    intercepts – from Western States, which would naturally be concerned
    lest
    supply of such evidence would release information about the capacities of their
    intelligence organisations and so prove contrary
    to their national interest. So
    a distinction familiar in UK interception law made its appearance in Rule
    70(B)[11]: the state
    or organisation could offer the fruits of sensitive operations, on a
    confidential basis, so long as it was only used by
    the prosecutor for the
    purpose of investigating, i.e. to “generate new evidence” rather
    than being put in evidence itself
    or used e.g. to coach prosecution witnesses or
    cross-examine defendants. As long as its use was confined in this way, its very
    existence
    need not be disclosed to the defence. A particular state or supplying
    entity might, of course, change its mind over time and permit
    the information to
    be used in evidence – in which case disclosure would immediately be made
    to the defence. To what extent
    can Rule 70, designed to protect national
    security information, be used to protect “information” supplied by
    the UN or
    NGOs coming to the prosecution in the form of a witness employed by
    those entities? The section was construed authoritatively by
    the ICTY Appeals
    Chamber in the Milošević case. It said that the Rule was
    “designed to encourage states and others (such as “humanitarian
    organisations operating
    in the relevant territory” to assist the
    prosecution or (under paragraph F of the Rule) the defence. Its purpose:

...is to encourage states, organisations, and individuals to share
sensitive information with the tribunal. The Rule creates an incentive
for such
cooperation by permitting the sharing of information on a confidential basis and
by guaranteeing information providers that
the confidentiality of the
information they offer and of the information’s sources will be
protected.[12]


  1. This
    court will follow the ICTY approach in Milošević. Rule 70
    encourages states, organisations and individuals to share sensitive information
    with the tribunal. It creates an incentive
    for such cooperation by permitting
    the sharing of information on a confidential basis and by guaranteeing
    information providers that
    the confidentiality of the information they offer and
    of the information sources will be protected. When requesting a third party
    to
    provide it with confidential information the Prosecution can, at that time,
    guarantee to the provider that the information will
    not be disclosed without
    their consent. “Information” under Rule 70(B):
    1. must
      be in the prosecutor’s possession,
    2. must
      have been provided on a confidential basis; and
    1. can
      only be used for the purpose of generating new evidence.
  2. The
    Court has the duty to ensure that Rule 70 is properly applied and particularly
    that witnesses claiming protection under Rule 70(D)
    have in fact provided the
    information under Rule 70(B). Rule 70(B) relevantly reads

Matters not subject to disclosure


B. If the prosecutor is in possession of information which has been provided
to him on a confidential basis and which has been used
solely for the purpose of
generating new evidence, that initial information and its origin shall not be
disclosed by the prosecutor
without the consent of the person or entity
providing the initial information and shall in any event not be given in
evidence without
prior disclosure to the accused.


  1. The
    information is protected from disclosure not because it is necessarily
    confidential in the civil law sense, but because it is
    information
    “provided to (the prosecutor) on a confidential basis”. As the ICTY
    Appeals Chamber in Milošević case points out, it is not for the
    court to enquire, under 70(B), into whether the information itself is
    confidential: it needs only
    to be satisfied that the relationship established
    between the information supplier and the prosecutor is a confidential one. This
    could hardly be the case if the information was obtained by subpoena or from a
    police search: normally it will be the result of a
    negotiated approach by the
    prosecution to a state agency or to an organisation believed to have
    information, and that entity will
    agree to supply it under a stipulation (agreed
    by the prosecutor) that the relationship will be treated as confidential. If
    any
    issue subsequently arises as to whether information has been “provided
    on a confidential basis” the Court will be entitled
    to look at all the
    circumstances to decide whether the basis on which the information was supplied
    by the entity was that it should
    be treated as confidential by the prosecution
    – whether in fact it was confidential information is nothing to the point.
    So
    long as the Prosecutor uses the information solely for investigative purposes
    (i.e. “for the purposes of generating new evidence”)
    it remains
    immune from disclosure to the Defence without the consent of the supplier. This
    immunity covers both “the initial
    information and its origin”, i.e.
    the information itself and the identity of the supplying entity and (by
    implication) the
    identity of any person or agency which has provided the
    information to the entity that in turn supplies it to the prosecutor. This
    follows from the ordinary and natural meaning of the word “origin”,
    i.e. “that from which anything originates or
    is derived: source of being
    or existence; starting
    point”.[13]

  2. It
    is plain that protection from disclosure is necessarily given by Rule 70(B) to
    the identity of the original source as well as to
    the identity of the supplying
    agency and to the information itself. If, however, the supplying entity
    subsequently consents, then
    the information itself may be given in evidence once
    proper disclosure has been made to the accused. This disclosure duty, however,
    is limited to that part of the information that the Prosecution intends to
    present in evidence. If the Prosecutor does not intend
    to call evidence as to
    the original source of the information, then the issue of whether the identity
    of that source can be elicited
    in cross-examination falls for decision under
    Rule 70(D).
  3. Rule
    70(D) reads:

D. If the Prosecutor calls as a witness the person providing or a
representative of the entity providing information under this Rule,
the Trial
Chamber may not compel the witness to answer any question the witness declines
to answer on grounds of confidentiality.


In determining whether to uphold a witness’s refusal to answer under
this sub-Rule, the court must first be satisfied that he
represents the entity
which has provided information to the Prosecutor on the confidential basis
described by Rule 70(B). Then,
however, it must test the claim of
confidentiality according to legal principles and satisfy itself that the
information the witness
seeks to withhold is truly of a confidential nature. To
take an obvious example, information provided by cooperative NGO under Rule
70(B) may include a file of press clippings and the witness may have given
evidence based on information in those clippings. A refusal
to answer questions
directed to identifying that source could not possibly be upheld: although
initially provided “on a confidential
basis” to the prosecutor at
the pre-trial stage covered by Rule 70(B), the information itself is entirely
lacking in the quality
of confidence (because it has been published to all the
world) and cannot be protected under Rule 70(D).


  1. It
    follows that a claim made under Rule 70(D) cannot be upheld without some enquiry
    into the nature of the information. In the CDF
    trial, the UN’s
    “human rights monitor” testified about what he had been told of the
    incidence of child recruitment
    in a particular area of Sierra Leone. He
    declined to name his source, because he explained that he had given an
    undertaking not
    to do so from which he had not been released. He gave
    sufficient information about the source for the court to recognise his claim
    to
    confidentiality as genuine: the source was truly “confidential”
    because the undertaking had been given to a person
    who had provided information
    on the strength of it and might still suffer brutal reprisals if it was ever
    revealed that he was at
    the time divulging what he knew to the UN. Since the
    information had been provided originally to the prosecution by the UN under
    Rule
    70(B), the court should not have compelled the witness to answer any question
    directed to identifying his confidential source.
  2. It
    is at this point, in deciding whether a claim of confidentiality under Rule
    70(D) is properly made by a witness in relation to
    information provided under
    Rule 70(B), that the broader issue of privilege may be relevant in confirming
    that the relationship between
    the witness and his source truly imports a duty of
    confidence. Privilege will, of course, be of vital importance where the witness
    cannot avail himself or herself of the shield afforded by Rule 70(D), because
    the information has not initially been provided to
    the prosecution under Rule
    70(B). For these reasons, I will proceed to consider the broader issue of the
    extent to which the confidential
    sources developed by human rights reporters can
    be protected from disclosure when those reporters subsequently testify in an
    international
    criminal court.

The Defence Right to Challenge Prosecution
Evidence


20. Let me first, however, deal with the objection forcibly made on behalf of
the defendants that the interpretation of Rule 70 adopted
by the ICTY in
Milošević and now applied by this court is a breach of their
rights fully to test the Prosecution evidence granted by Section 17 of the SCSL
Statute. This objection does not arise in relation to material supplied under
70(B) to the Prosecution for use solely for the purposes
of investigation,
although there may be a potential difficulty if that information includes
exculpatory material. (Further investigation
may stand it up to the extent that
the prosecutor drops the charges: if by the time of trial it still points
credibly to innocence,
I would have thought that the prosecution has an
obligation either to disclose it to the defence or to decline to proceed the
change
or changes in respect to which it points to
innocence.[14]) Once
information provided under Rule 70(B) has been introduced into evidence, and a
claim of confidentiality has been upheld under
Rule 70(D) which limits defence
opportunities to test its reliability, the court has nonetheless ample powers to
ameliorate any prejudice.
This amplitude is emphasised by Rule 70(E) (the
right of the accused to challenge the evidence presented by the prosecution
shall remain unaffected subject only to limitations
contained in sub-Rules (C)
and (D)
) and Rule 70(F) (nothing in sub-Rule (C) or (D) above shall
affect a Trial Chamber’s power to exclude evidence under Rule 95
.)
These provisions may also be used in a non-70(D) situation where a journalist or
human rights reporter is permitted to protect
confidential sources. These
powers include:


(1) Cross-Examination


  1. The
    Defence may not elicit the name of the source, or obtain answers to any
    questions the witness reasonably believes will tend to
    identify that source.
    But his reliance on the source may be shaken in other ways: by confronting him
    with evidence that what the
    source told him could not be true; by establishing
    that the source was paid for the information; by eliciting the fact that the
    source
    came from a community or organisation that had an axe to grind or a
    motive for malice, and so on. The witness can be questioned
    about the nature of
    his undertaking to the source, the genuineness of the source’s fear of
    reprisal; the circumstances of their
    meeting; whether the witness has contacted
    the source to seek a release from the undertaking, and so on. Obviously the
    court must
    respect the witness’s refusal to answer any question which
    might lead to the discovery of the source’s identity, but
    that still
    leaves some scope for a challenge to the reliability of the source and of the
    witness’s understanding of what the
    source actually told him.

(2) Exclusion of the Evidence


  1. Rule
    95 provides that no evidence shall be admitted if its admission could bring the
    administration of justice into serious disrepute.
    This might well be the case
    if the prosecution were allowed to call a witness who averred that a
    confidential source told him that
    the defendant had committed the alleged crime.
    The spectacle of defendants being confronted with hearsay statements from
    anonymous
    sources alleging their guilt of the crime charged would be a plain
    breach of the right to confront adverse witnesses guaranteed by
    Article 17(4)(e)
    of the Special Court Statute. The court might, alternatively, admit this sort
    of evidence and then give it no weight,
    but the preferable course is to exclude
    it ab initio, so that anonymous accusations of crime do not sully the
    court process.

(3) Weighting Hearsay Evidence


  1. That
    hearsay evidence is “admitted” or heard without objection does not
    mean that it is necessarily accepted as reliable
    or probative. A witness who
    objects to naming his source may diminish the probative value of any evidence he
    gives based on or inferred
    from what that source has told him. Hearsay evidence
    will be evaluated by the court at the end of the day and unless corroborated
    may
    count for very little. Its value will depend on the context and on all the
    circumstances: I cannot imagine a situation where
    conviction would actually turn
    upon uncorroborated hearsay. It may, nonetheless, be significant, usually by
    enabling the Prosecution
    readily to establish the existence of some factual
    situation which must be proved to exist before the defendant can be held on
    other,
    direct evidence, to have been responsible for it. Hearsay is routinely
    used by experts as part of the factual matrix upon which
    their opinions are
    based, and in this respect the approach of the ICTR Trial Chamber in
    Prosecutor v Bizimungu is
    instructive.[15] Dr.
    Alison des Forges was called as an expert: she based an opinion upon two
    accounts of a meeting with the ex-President given by
    confidential sources,
    confirmed (to the extent that the meeting did take place) by documentary
    evidence. Her right to withhold the
    names of her sources was upheld, although
    the court pointed out that this would be a factor to be considered in evaluating
    her evidence.
    Bizimungu must be handled with care, however: it applies
    only to expert evidence and does not suggest that direct hearsay accusations
    cannot
    infringe fair trial rights. Defendants must never be convicted solely on
    evidence from anonymous accusers: the court effectuates
    that principle by
    excluding or else devaluing hearsay accusations, rather than by compelling a
    witness who reports them to divulge
    the identity of the confidential source who
    made them.

Do Human Rights Reporters have a testamentary privilege?


  1. The
    novel issue canvassed by the parties to this appeal is whether human rights
    reporters are entitled, in the course of their testimony,
    to decline to answer
    questions directed to identifying the source of their information. The
    Prosecution, forcefully supported by
    the amici, urges that the public
    interest requires them to possess such a privilege, either in absolute terms or
    at least on a qualified basis.
    The defence urges that any entitlement to resist
    source disclosure would improperly undermine a defendant’s right to
    challenge
    the evidence given against him.
  2. It
    is important at the outset to clarify one matter that has confused the
    submissions before us. The cases of Simić and Brđanin
    were concerned with the compellability of certain classes of persons to
    testify at all – whether the Red Cross was entitled to stop its employees
    from giving any
    evidence about their work (Simić) and whether a war
    correspondent was entitled to resist a subpoena issued by the court at the
    behest of the prosecutor (Brđanin). Although the approach taken by
    the court – in Brđanin at least – is instructive, the
    compellability of human rights reporters is not here in issue. The UN official
    was perfectly
    willing to testify and the UN was agreeable so long as he did so
    in closed court. I should have thought that Amnesty International
    and Human
    Rights Watch – organisations that have done so much to alert the world to
    the need to try alleged perpetrators of
    crimes against humanity and have been so
    supportive of international criminal courts - should not be concerned if their
    monitors
    and researchers are called upon to provide evidence, whether at the
    instance of prosecution or defence or the court itself. These
    organisations
    issue reports which describe in detail facts which can be highly relevant to war
    crimes trials, compiled by their on-the-spot
    experts sometimes for the very
    purpose of galvanising international actions including prosecutions. For that
    reason, their reporters
    may be compelled (normally they will volunteer) to
    assist the court as experts (like Dr. des Forges) or as witnesses of fact. What
    they and their organisations are rightly concerned about is the danger that when
    under cross-examination they could be asked questions
    the honest answers to
    which would identify a source to whom they have promised anonymity and who may
    well be in danger of harsh or
    even lethal reprisals if publicly exposed or even
    if named in closed session.
  3. A
    similar problem has taxed the courts for centuries in cases concerning police
    informers, where the answer is usually given that
    the public interest requires
    non-disclosure unless there is a real danger of justice miscarrying – e.g.
    through the informant’s
    malice or invention. There is a great deal of
    domestic case law on how this balance should be struck, identifying situations
    (e.g.
    the involvement of a “participating informant” or an agent
    provocateur
    ) when disclosure will be ordered. In common law systems, courts
    were initially inclined to protect information divulged in the course
    of
    established confidential relationships – husband and wife; priest and
    penitent; psychiatrist and patient etc, although the
    modern trend is to
    subordinate confidentiality to the interests of justice, especially in the
    prosecution of serious crime. The
    only exception, where judges have decided
    that confidentiality must be absolute, is within the lawyer/ client
    relationship, although
    even in that sacrosanct area, inroads have been made by
    requiring, for example, notification of certain financial transactions or
    of
    plans by clients to commit crime. The closest analogy with the present case is
    the claim of journalists to protect their sources
    and in this respect we have
    the benefit of the landmark ECHR decision in Goodwin v. UK which in turn
    influenced the ICTY decision granting war correspondents qualified
    compellability in the Brđanin case.
  4. Goodwin
    decided that a qualified privilege to protect journalistic sources followed from
    the right to freedom of expression. The public
    right to newsworthy information
    entails that those who supply it to journalists, frequently in breach of the
    confidence of their
    employers or colleagues, should nonetheless be protected
    because otherwise these sources would “dry up”, i.e. stay silent,
    and much newsworthy information would not be imparted and would not in
    consequence be published. The European Court of Human Rights
    held:

Protection of journalistic sources is one of the basic conditions
for press freedom, as is reflected in the laws and professional
codes of conduct
in a number of contracting states and is affirmed in several international
instruments on journalistic freedoms.
Without such protection, sources may be
deterred from assisting the press and informing the public on matters of public
interest.
As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable
information may be adversely affected. Having regard to the importance of the
protection of journalistic sources for press freedom
in a democratic society and
the potentially chilling effect an order of source disclosure has on the
exercise of that freedom, such
a measure cannot be compatible with Article 10 of
the Convention unless it is justified by an overriding requirement in the public
interest.[16]


  1. The
    reasoning behind the protection of journalistic sources can, it seems to me, be
    applied in principle to human rights reporters,
    or at least to those
    “monitors” who are in effect tasked with collecting information for
    public purposes – to inform
    the reports of the UN Secretary General (which
    may well lead to Security Council action) or to research for reports issued to
    the
    public by NGOs like Amnesty and Human Rights Watch. There is in my
    judgement little meaningful difference in this respect between
    an investigative
    journalist tracking a story in a war-torn country, a war correspondent reporting
    on the ebb and flow of the conflict,
    and a researcher for a human rights
    organisation filing information for an “in depth” report or for
    filtered use in an
    annual report, or for a UN monitor gathering information for
    a Secretary General’s report to the Security Council. All are
    exercising
    a right to freedom of expression, (and, more importantly, assisting their
    source’s right of free speech) by extracting
    information for publication
    from people who would not give it without an assurance that their names will
    remain anonymous. The reprisal
    they often face in such circumstances, unlike
    the risk run by Mr. Goodwin’s source of being sacked or sued for breach of
    confidence,
    is of being killed as an “informer” – a traitor to
    the organisation or the community on whom they are silently
    squealing. To
    identify them in court would betray a promise and open them to such reprisals:
    more importantly, if courts routinely
    ordered witnesses to name their sources,
    then information about human rights abuses would diminish because reporters
    could not in
    good conscience elicit it by promises to protect their sources.
    For these reasons, I consider that “human rights monitors”,
    like
    journalists, have a privilege to refuse to name those sources to whom they have
    promised anonymity and who are in danger of
    reprisal if that promise is broken.
    In practical terms, that means they must not be compelled to do so by threats to
    invoke the
    court’s power to hold them in contempt and to fine or imprison
    them. It does not mean, of course, that the evidence that they
    give, based on
    information from sources they decline to name, will be accorded normal weight.
    Their entitlement to protect their
    source has this downside for the party that
    calls them: it may lose some and perhaps all of the weight that might otherwise
    be placed
    on the evidence that is given based on the anonymous source
    material.
  2. This
    right to protect sources must be qualified rather than (as some amici
    argue) absolute. It cannot extend beyond the public interest which sustains it
    in the first place. Just as a journalist who writes
    of his discovery of an
    “impeccable source” for the innocence of a man being tried for
    murder will be compelled to disclose
    that source on pain of a finding of
    contempt of court, so a human rights monitor who offers, say, a hearsay account
    of a defendant’s
    confession of guilt, may well be required to identify the
    source. There can be no confidence in iniquity, and any reporter who has
    been
    tricked into giving an undertaking of confidentiality to someone who has
    exploited them to put false evidence before the court
    in an attempt to pervert
    justice will not be allowed to protect that source. Instances might be
    multiplied, although in practice
    interesting hypotheticals are usually resolved
    by the parties themselves declining to call a witness if there is a danger that
    a
    genuinely confidential source will be exposed. That danger can be forestalled
    by an application for a preliminary ruling as was
    sensibly made in this case.
    No court wishes to punish for contempt a witness of probity who refuses to
    answer a question on grounds
    of honest conscience.
  3. The
    majority in both Trial Chambers were wrong to regard the privilege to protect a
    confidential source merely as an interest to be
    balanced against the interest of
    the Defence in securing a fair trial. This approach fails to recognise that the
    privilege itself
    has emerged as a result of balancing the public interest in
    protecting confidential news sources against countervailing public interests,
    and one reason why the balance has come down in favour of the qualified
    privilege is that the court can avoid unfairness to the defence
    by excluding
    anonymous hearsay or by giving it less weight. Members of local communities in
    war zones must be able to trust UN monitors
    when they promise that cooperation
    will remain confidential. If courts were to make the privilege contingent upon
    an unpredictable
    balancing exercise, this would preclude the honest giving of
    promises to protect and hence reduce the information available to the
    UN. As
    its High Commissioner for Human Rights has submitted:

Failure to recognize a rule protecting the confidentiality of the
identities of those who provide information to U.N. human rights
officers would
undermine the credibility of guarantees of confidentiality which such officers
are required to provide, leading local
actors to lose confidence in the
trustworthiness and independence of U.N. human rights officers. This would
inevitably result in
local populations (including NGOs and other local groups
and institutions) being unwilling to cooperate with, and provide reliable
information to, U.N. human rights officers, thereby making it impossible for the
human rights officers to carry out their functions
effectively.[17]


  1. This
    is a claim of a kind that is not susceptible to proof, but which experience
    suggests is likely to have some substance and should
    not lightly be put aside.
    There is an overriding international public interest in UN human rights
    reporters being able to give an
    assurance of confidentiality to those who put
    their necks on the line to inform on the murderous activities of powerful forces
    or
    figures within their community: the punishment of “necklacing” in
    apartheid South Africa is a vivid reminder of just
    how ferocious revenge can be
    against those who inform. The High Commissioner accepts that the privilege is
    qualified, but only where
    the disclosure of an informant’s identity could
    raise a reasonable doubt as to the guilt of the accused. There may be other
    hard cases – where for example the prosecution tenders uncorroborated
    hearsay evidence that the defendant committed a truly
    atrocious crime –
    but their exceptionality and rarity should not preclude an honest guarantee of
    confidentiality. In practice,
    where information of this significance is
    volunteered, it will be the duty of the monitor’s organisation to convince
    the source
    to come forward and testify, under conditions (including relocation
    of the source and his family) that will provide sufficient protection.
  2. The
    public interest in protecting UN sources so as to keep a free flow of
    information to the Security Council can readily be appreciated.
    Does that
    interest apply with the same force to organisations like Amnesty and Human
    Rights Watch? In this respect their work is
    indistinguishable in principle (if
    not in expertise) from that of other media outlets: they collect and expertly
    analyse information
    about human rights abuses in various countries and publish
    it in annual and in special reports which are widely disseminated and
    which
    serve to inform governments and international institutions, as well as the
    interested public, about such abuses and serve as
    a basis for campaigns to end
    them. The public interest in the free flow of information to such publications
    is at least as great
    as to other investigative media. Moreover, the
    consequences of exposure for sources of this kind of information can be
    calamitous.
    It is apt to recall that the protective rule in Goodwin was
    fashioned in the context of the genteel environment of the City of London, where
    a business journalist was fined £1,500
    for refusing to name an
    “insider” source of information about a company’s finances:
    the source would face only
    disciplinary action or a writ for breach of
    confidence. In repressive countries, sources for Amnesty and Human Rights Watch
    reporters
    who tell of torture, death squads and arbitrary imprisonment may, if
    exposed, face these very consequences. Not only may they be
    brutally treated as
    punishment for embarrassing the government or other power brokers, but their
    families and friends may also face
    reprisals. This fact underlines the need for
    the protective rule that I have identified as a privilege in the witness,
    although
    that “privilege” is a reflection of the rather more weighty
    “right” of the source.
  3. It
    permits the journalist or monitor – in effect, the reporter – to
    withhold the source’s name or identifying details
    when questioned in
    court. This means that such a refusal should not amount to contempt and so
    cannot be punished by fine or imprisonment.
    It also carries the consequence
    that the court must adjust its reception of evidence based on the unidentified
    source to ensure
    a fairness to the defence, e.g. by excluding it from
    consideration altogether or reducing its weight or requiring corroboration
    before
    it is taken into account. The privilege is not absolute, but must yield
    in cases where the identification of the source is necessary
    either 1) to prove
    guilt, or 2) to prove a reasonable doubt about guilt. In the first case, e.g.
    where the reporter tells of a source
    who claims to be an eye-witness to the
    crime or the recipient of a confession from the defendant, the problem may in
    practice be
    avoided if the Prosecution declines to lead the evidence, which
    would be inadmissible hearsay in common law jurisdictions. In the
    second case,
    as the UNHCHR accepts, there is no way out: the overriding importance of
    avoiding a miscarriage of justice does require
    the naming of an exculpatory
    witness, or (if the prosecution wishes to avoid this) dropping the charge upon
    which the hearsay evidence
    is based.
  4. One
    problem to which the amici have not adverted is the proliferation of
    “human rights NGOs” – several thousand, at last count –
    most with
    “monitors” of varying calibre and experience. Some of
    these NGOs have been accused of sensationalising reports in order
    to gain
    support for campaigns or membership subscriptions, whilst others might have a
    bias derived from political connections. Certain
    NGOs with “human
    rights” in their title may even undermine human rights
    causes.[18] Are all
    these “human rights monitors” to be accorded a qualified privilege
    to withhold the names of sources –
    a privilege we may be content to award
    to those who work for the three amici? For myself, I do not see how a
    meaningful distinction can be made any more than the Goodwin privilege
    can be denied to the many “journalists” who have a propaganda agenda
    or report on wars where they support one
    side or the other. The
    reporter’s privilege is, after all, the obverse of the right possessed by
    the source, who may speak
    low, in fear and trembling, to the first journalist or
    monitor who appears in his burnt out village, completely unaware of any bias
    and
    concerned only that their identity be protected if they tell what they know.
    The prospect that what they say will be “spun”
    or exaggerated by
    partisan journalists or monitors does not lose the source his or her right to be
    protected from exposure: what
    it does mean is that the court must give the party
    which cross-examines the reporting witness full reign to explore any bias or
    hidden
    agenda or other motive for distortion or exaggeration.
  5. Courts
    must guard against allowing prosecutions to present evidence which amounts to no
    more than hearsay demonisation of defendants
    by human rights groups and the
    media. The right of sources to protection is not a charter for lazy prosecutors
    to make a case based
    on second-hand media reports and human rights publications.
    Unchecked hearsay has an inevitable place in the factual matrix upon
    which
    expert opinion is based (e.g. the evidence of Dr. des Forges in
    Bizimungu) and it may be introduced uncontroversially for secondary
    purposes and to fill gaps: it may be the best evidence available or it
    may be
    corroborated by first-hand evidence. The court’s scrutiny of it will be
    the more intense the closer it comes to implicating
    a defendant and there may
    come a point at which it may be rejected entirely unless the source can be
    identified.
  6. This
    approach upholds a reporter’s privilege to protect sources who tell of
    their crimes, derived from the source’s right
    both to speak freely about
    abuses and to assist the well-established international law duty of states and
    international agencies
    to investigate crimes against humanity. To effectuate
    that doubly-justified right, certainly in repressive or post-conflict societies,
    the source is entitled to expect that the reporter deliver on the undertaking
    never to disclose identity without consent. If that
    is the condition upon which
    the information is vouchsafed, the reporter who comes to testify in a war-crimes
    court is under a duty
    of conscience to refuse to answer questions which may
    expose the source. The court must respect that refusal, either by applying
    Section 70(D) where the evidence has originated in circumstances covered by Rule
    70(B) or in other cases by relieving the witness
    of the duty to answer. There
    should be no finding of contempt made against a reporter who refuses to disclose
    a confidential source,
    unless the court is satisfied that the source’s
    right to protection is overridden by the interests of justice, either in
    establishing
    the defendant’s guilt or in demonstrating a real prospect
    that he is innocent.
  7. This
    approach should be applied pragmatically, by courts which recognise the danger
    (observed at the ICTY and ICTR) that witnesses
    (and sources) who have been
    embroiled in armed conflict may be partisan and in some cases malicious, even to
    the extent of inventing
    or fabricating evidence. Fabrication, moreover, may
    without cross-examination of the source fool even the most experience human
    rights monitor (it was, after all, an experienced researcher for a respectable
    organisation who published the notoriously false story
    about the Kuwaiti babies
    being thrown out of hospital incubators by Iraqi troops during the first Gulf
    war). On the other hand,
    there must be an equal recognition that score-settling
    will continue for long after the conflict and that sources may be assaulted,
    killed or driven out of their communities as the result of exposure. On that
    hand, too, there must be a recognition that closed
    court hearings do not provide
    any firm guarantee that information about the source will not leak: the name
    must be provided to the
    defendant as well as to a variety of lawyers,
    prosecution and defence investigators and court staff. This court has had one
    case
    where its protective measures were insufficient to protect a witness. The
    right of the source extends to having the confidential
    undertaking by the
    reporter respected by the Court, although since the source may at any time
    release the reporter from that undertaking
    it will be reasonable to enquire of
    the reporter whether such a release has been sought.
  8. The
    reporter’s privilege for human rights monitors must follow, in my view,
    from the decision in Goodwin extrapolated to a conflict situation where
    reports are being made to inform and influence the public. It is powerfully
    supported
    by dicta in Brđanin, a case in which the ICTY Appeals
    Chamber ruled that war correspondents could not be compelled to testify in war
    crimes courts unless
    the party which subpoenaed them could establish that their
    evidence would be “really significant” – i.e. of direct
    and
    important value in determining a core issue in the case, and that in any event
    this evidence could not reasonably be obtained
    elsewhere. That conclusion was
    reached in respect of war correspondents – many (but not all) of whom
    insist that their profession
    depends upon strict neutrality and that in an
    ongoing conflict their neutrality would be undermined were they to appear for
    any “side”
    in a war crimes trial. In fashioning a rule that
    accommodated this interest, the Appeals Chamber took Goodwin as its
    starting point, namely that the freedom of expression guarantee protects sources
    in order to maintain the free flow of public
    interest information. The court in
    Brđanin went on to assess war zone information as serving the
    highest public interest:

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... 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.[19]


The court concluded that compelling war correspondents to testify 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.”[20]


  1. I
    see no meaningful distinction between the war correspondent and the human rights
    reporter in terms of the importance of the information
    they gather or the public
    interest that its publication will serve or the danger that it will dry up if
    the court routinely orders
    them to identify their sources. Brđanin
    was a case on compellability rather than privilege but it assumes that on the
    limited occasions when war correspondents are compelled
    to testify on core
    issues, they will be accorded a Goodwin-style privilege to withhold the
    names of their sources. It is that assumption which this case must put in a
    definitive form.
  2. The
    prosecution and amici have placed reliance additionally upon
    Simić but I agree with the Defence that this case does not assist
    them. It is an ICTY Trial Chamber majority decision to the effect that
    the
    ICRC, because of its unique position under the Geneva Conventions, was entitled
    in customary international law to an absolute
    privilege which could be exerted
    to prevent employees from giving evidence of observations made whilst on Red
    Cross work. It was
    a ruling that Red Cross employees and ex-employees lacked
    capacity to testify. Like Justice Hunt, who dissented, I do not find in
    customary international law any warrant for such a sweeping and absolute
    exemption from those dictates of conscience and humanity which will often impel
    witnesses of crimes against humanity to offer to
    testify, irrespective of
    confidentiality arrangements. The ICRC has a duty to remain neutral but that
    does not mean that customary
    international law treats its employees and
    ex-employees as incompetent to testify, certainly if their evidence is
    indispensable to
    determining guilt or innocence. The ICRC has been criticised
    for choosing to say nothing about the holocaust in order that its work
    in
    prisoner of war camps in Germany might not
    suffer,[21] and there
    is no basis for finding a warrant for that position in customary international
    law. Should an ex-employee offer eye-witness
    evidence that a defendant ordered
    torture or (even more pointedly) offer conclusive evidence that a defendant was
    not involved in
    the acts of torture with which he was charged, I doubt that the
    majority Trial Chamber decision in Simić should be followed so as to
    debar the court from hearing such crucial evidence. The preferable rule is that
    ICRC employee evidence
    should be excluded unless it is indispensable to
    prove a crime of utmost
    gravity.[22] Justice
    Hunt preferred to balance the competing interests: his test was “whether
    the harm which would be done by the allowance
    of the evidence outweighs the harm
    done by the frustration or the impairment to justice if the evidence is not
    available.”[23]
    While it would only be in a rare case that the Red Cross employee would be
    ordered to testify, he identified two such situations:
    “Where the evidence
    of an official or employee of the ICRC is vital to establish the innocence of
    the accused person”
    and “Where the evidence of an official or
    employee of the ICRC is vital to establish the guilt of the particular accused
    in
    a trial of transcendental
    importance.”[24]
    He thus concluded that:

The correct test is whether the evidence to be given by the witness
in breach of the obligations of confidentiality owed by the ICRC
is so essential
to the case of the relevant party (here the prosecution) as to outweigh the risk
of serious consequences of the breach
of confidence in the particular case.
Both the gravity of the charges and the availability of means to avoid
disclosure of the fact
that the evidence has been given would be relevant to
that
determination.[25]


Simić is far removed from the present case: it concerns not
testamentary privilege but the incapacity of a witness to testify, as the result
of a unique international obligation undertaken by the potential witness’s
employer and enshrined in the Geneva Conventions.


  1. The
    court has been helpfully supplied by Professor Knoops and his defence team with
    an analysis of European Court jurisprudence on
    defence rights. That shows that
    where witnesses do not attend for cross-examination but the court places
    reliance on their statement
    or deposition, or in the case of an anonymous
    witness Article 6 is not necessarily violated unless either there is no reason
    for
    anonymity, or the evidence has been determinative of guilt. The leading
    case is Delta v France, which concerned a conviction for assault where
    the defendant had not been allowed to cross-examine the victim or an eye-witness
    who provided the written statements on which he was convicted. The court
    held:

In principle, the evidence must be produced in the presence of the
accused at a public hearing with a view to adversarial argument.
This does not
mean, however, that in order to be used as evidence statements of witnesses
should always be made at a public hearing
in court: to use as evidence such
statements obtained at the pre-trial stage is not in itself inconsistent with
paragraphs 3 (d)
and 1 of Article 6, provided the rights of the defence have
been respected. As a rule, these rights require that an accused should
be given
an adequate and proper opportunity to challenge and question a witness against
him, either at the time the witness makes
his statement or at some later stage
of the
proceedings.[26]


  1. I
    agree, but this case too is far removed from the present, where the defence will
    have full opportunity to challenge the reliability
    and credibility of the
    reporter-witness and to argue for the minimalisation of such part of his
    evidence as may be based on an unidentified
    source. That evidence is entirely
    secondary: it does not name or implicate any defendant, but simply offers one
    description of a
    situation on the ground, so that the court may assess (with the
    help of other evidence) whether there was a pattern of criminal conduct.
    It
    should be heard, for what it is worth, as a background fact, and the reporters
    privilege to decline to name the source for it
    should be upheld.

Conclusion


  1. This
    appeal should be upheld. The majority decision below should be reversed. The
    prosecution request for leave for witness TF1-150
    to testify without being
    compelled to reveal the identity of his source in accordance with a privilege
    not to disclose the name of
    confidential informants, or alternatively pursuant
    to Rule 70(D), should be upheld.
______________________
Justice Geoffrey Robertson,
QC


[Seal of the Special Court for Sierra Leone]



[1] Prosecutor v.
Simić et al.,
Case no. IT-95-9, [Public Version] Ex Parte
Confidential
Decision on the Prosecution Motion under Rule 73 for a Ruling
Concerning the Testimony of a Witness, 27 July 1999.

[2] Prosecutor v
Brđanin and Talić
, Case No. IT-99-36-AR73.9, Decision on
Interlocutory Appeal, 11 December
2002.
[3] Goodwin
v. United Kingdom,
[1996] ECHR
16.
[4] Doc. No.
SCSL-04-16-AR73-441:Prosecutor v. Brima, Kamara, Kanu, Case No.
SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial
Chamber II Majority Decision on Extremely
Urgent Confidential Joint Motion for
the Re-Appointment of Kevin Metzger and Wilbert Harris As Lead Counsel for Alex
Tamba Brima
and Brima Bazzy Kamara, 8 December 2005, paras.
19–26.
[5]
Wigmore on Evidence, para
1834
[6] Edmonton
Journal v AG for Alberta
, [1989] 2 S.C.R. 1326, 1361 (Supreme Court of
Canada). See also, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980) (United States Supreme
Court)..
[7] Impugned
Decision, para.
20.
[8] Prosecutor
v Brđanin and Talić
, Case No. IT-99-36-AR73.9, Decision on
Interlocutory Appeal, 11 December
2002
[9] 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, 22
September 2005, para. 16.
10 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, 22 September 2005,
paras. 4–6,
16.
[11] See
R. v. Preston (1994) 2 AC
130.
[12]
Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3,
Public Version of the Confidential Decision on the Interpretation and
Application of Rule
70, 23 October 2002, para.
18
[13] Oxford
English Dictionary, “origin”.

[14] See
Rule 68: Disclosure of Exculpatory Evidence
(amended 14 March 2004)

(A) The Prosecutor shall, within 14 days of receipt of the Defence Case
Statement, make a statement under this Rule disclosing to
the defence the
existence of evidence known to the Prosecutor which may be relevant to issues
raised in the Defence Case Statement.

(B) The Prosecutor shall, within 30 days of the initial appearance of the
accused, make a statement under this Rule disclosing to
the defence the
existence of evidence known to the Prosecutor which in any way tends to suggest
the innocence or mitigate the guilt
of the accused or may affect the credibility
of prosecution evidence. The Prosecutor shall be under a continuing obligation
to disclose
any such exculpatory
material.

[15]
Prosecutor v. Bizimungu, case No. ICTR-99-50-T, Decision on Defence
Motion for Exclusion of Portions of Testimony of Expert Witness Dr. Alison des
Forges,
2 September
2005.
[16]
Goodwin v. United Kingdom, [1996] ECHR 16, para.
39.
[17] Amicus
Curiae
Brief of the United Nations High Commissioner for Human Rights, 16
December 2005, para.
37.
[18] According
to the Economist, 4 December 2004, “Yanukovich’s Friends – a
human rights group that defends
dictators”.
[19]
Prosecutor v Brđanin and Talić, Case No. IT-99-36-AR73.9,
Decision on Interlocutory Appeal, 11 December 2002. paras. 36,
46.
[20]
Ibid, para.
44.
[21] David
Rieff, A Bed for the Night – Humanitarianism in Crisis (Vintage,
2002) pp. 76–77,
148.
[22] This was
the ICRC fall-back position in argument in Simić. See,
Prosecutor v. Simić et al., Case no. IT-95-9, [Public Version] Ex
Parte Confidential
Decision on the Prosecution Motion under Rule 73 for a
Ruling Concerning the Testimony of a Witness, 27 July 1999, para 19.

[23] Separate
Opinion of Judge David Hunt on Prosecutor’s Motion for a Ruling Concerning
the Testimony of a Witness, 27 July 1999,
para
27.
[24]
Ibid, paras
29-31.
[25]
Ibid, para.
35.
[26] Delta
v. France
, [1990] ECHR 30, para. 36.